Human Fertilisation and Embryology Bill [HL]

15:19:00

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham)
My Lords, I beg to move that the Bill be now further considered on Report.

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

Clause 14 [Conditions of licences for treatment]:

Baroness Finlay of Llandaff
moved Amendment No. 111A:

111A: Clause 14, page 9, line 14, at end insert—
 “( ) For the purposes of this Part the term “a supportive parent” means a parent who is willing and able to make a long term commitment to safeguard the child’s health, development and welfare and provide, in a manner appropriate to the age and development of the child, direction and guidance.”

The noble Baroness said: My Lords, I apologise to the House on behalf of my noble friend Lord Northbourne, who unfortunately is detained today. This amendment stands in my name, his name and the name of the noble and learned Baroness, Lady Butler-Sloss. There have been previous debates on the need to define what supportive parents do rather than, as is currently the situation, simply what parents do not do, so we felt that this amendment would be an important addition to the legislation. At previous stages, this amendment and the idea of defining supportive parenting had a great deal of support. Indeed, at the close of proceedings on the previous day of Report, the Minister gave an assurance in relation to this amendment. I hope that today he will be able to confirm that I and my noble friends are correct in our understanding that the wording of this amendment, which reflects the wording in the letter sent round by the Minister, will be incorporated into the code of practice that goes with this Bill. On 21 January, the Minister said that the Government,

“believe it would be appropriate to have an explanation of this term”—

supportive parenting—

“in guidance produced by the HFEA—in its code of practice, which is subject to approval by the Secretary of State”.—[Official Report, 21/1/08; col. 55.]

I hope that today the Minister will be able to confirm that the Secretary of State intends to include in the code of practice the definition with the wording as laid out. If that is the case, we will be delighted and will not need to press for anything to go in the Bill. I beg to move.

Baroness Howarth of Breckland
My Lords, in his reply could the Minister also explain how the assessment will be made, and who will make it, that the family will be supportive and watch the child’s development for its life? In an adoption hearing that kind of assessment is made, but when a family goes for treatment for fertilisation it is unusual for that depth of assessment to be made, so I would be interested to know how the Minister sees this operating in practice.

Lord Winston
My Lords, it might also be helpful if the Minister could tell us whether this kind of assessment will apply to those infertile couples receiving not only in vitro fertilisation but other treatments for infertility.

Lord Harries of Pentregarth
My Lords, perhaps while we are in the business of further clarification we could have an assurance that supportive parenting, spelt out in the terms of this amendment, is to be looked at against the background of risk assessment. When the Human Fertilisation and Embryology Authority looks at the welfare of the child, it will be looking at whether there is in some way a significant risk that it has to examine; it will pursue the issue further only if there is sufficient risk. I have had one or two e-mails from people involved with this work who are concerned that this supportive parenting amendment will put an extra burden on clinics if it is not seen against the background of proper risk assessment.

Lord Darzi of Denham
My Lords, we have discussed the welfare of the child at length on previous occasions. It might be helpful, however, if I reiterate some of the important points about the need for supportive parenting. I am sure that everyone accepts the importance of supportive parenting in the context of the child’s welfare. I also recognise that, for many noble Lords, how supportive parenting is defined is a key issue. We consider that a supportive parent would be willing and able to make a long-term commitment to safeguard and promote the child’s health, development and welfare and, in a manner appropriate to the age and development of the child, to provide direction and guidance. This definition is as suggested in the amendments tabled by the noble Lord, Lord Northbourne, the noble Baroness, Lady Finlay of Llandaff, and the noble and learned Baroness, Lady Butler-Sloss.

As I made clear in our earlier discussion, our opinion is that an Act about fertilisation and embryology is not the appropriate place to have specific statements or definitions about parenting, as it would need to have relevance to parenting generally and not just in this specific context. We fully recognise the importance of knowing the meaning of the term, particularly for clinicians who carry out the assessments. Therefore, we believe that it would be appropriate to have the explanation of this term in the guidance produced by the HFEA, which is in its code of practice and is subject to approval by the Secretary of State.

The Bill makes 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. People embarking on assisted reproduction are fully committed to having a child, having given it a great deal of thought, and, in general, it would be expected that such people would be supportive parents. But, as part of the consideration of the welfare of the child, in the rare situations—as the noble and right reverend Lord, Lord Harries, highlighted—when treatment providers are aware of evidence or indications that this is not the case, they should take this into account when considering whether to provide treatment. All patients need to consider how they would provide supportive parenting and provide for the needs of that child. What is critical is that the welfare of the child is safeguarded. We believe that this is achieved by referring to the need to have supportive parenting. I hope that I have reassured the House and that the noble Baroness will feel able to withdraw the amendment.

Lord Elton
My Lords, the Minister said in his opening paragraph, quite understandably, that it would not be appropriate to put the amendment into this Bill because it would apply to only a narrow spectrum of adoptive parents. Do we take it, therefore, that when an appropriate instrument or Bill comes through, the Government will take the opportunity to put this provision in legislation, or will it be only in guidance that affects this group of parents?

Lord Darzi of Denham
My Lords, the noble Lord makes an important point. I shall seek legal opinion on the best place in which to fit this provision, if such an opportunity arises in future.

Lord Neill of Bladen
My Lords, am I right in understanding that “long term commitment” means that the minimum period would be the entire period while the child remains a child? Most parents find that they have a commitment well beyond that point, but would that be the minimum that would be understood by “long term commitment”?

Lord Darzi of Denham
My Lords, logic tells me that it would be throughout the child’s development, until the child becomes an adult.

Baroness Finlay of Llandaff
My Lords, I am most grateful to the Minister for his answer and for reiterating what was said last time we debated the Bill. He has given us the assurance that we sought that this will go into the code of practice as approved by the Secretary of State. Therefore, with pleasure, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112 had been withdrawn from the Marshalled List.]

[Amendment No. 112A not moved.]

Lord Darzi of Denham
moved Amendment No. 113:

113: Clause 14, page 10, line 42, leave out “of training persons in the testing of embryos” and insert “mentioned in paragraph 1(1)(ca) of Schedule 2 (training in embryological techniques)”

On Question, amendment agreed to.

Clause 15 [Conditions of storage licences]:

Lord Darzi of Denham
moved Amendments Nos. 114 to 118:

114: Clause 15, page 11, line 14, leave out “inter-species embryos” and insert “human admixed embryos”

115: Clause 15, page 11, line 34, leave out “an inter-species embryo” and insert “a human admixed embryo”

116: Clause 15, page 11, line 40, leave out “inter-species embryos” and insert “human admixed embryos”

117: Clause 15, page 11, line 43, leave out “inter-species embryos” and insert “human admixed embryos”

118: Clause 15, page 12, line 2, leave out “inter-species embryos” and insert “human admixed embryos”

On Question, amendments agreed to.

[Amendment No. 119 had been withdrawn from the Marshalled List.]

Clause 16 [Grant of licence]:

Lord Darzi of Denham
moved Amendment No. 120:

120: Clause 16, page 12, line 15, leave out “inter-species embryos” and insert “human admixed embryos”

On Question, amendment agreed to.

Clause 17 [The person responsible]:

Lord Darzi of Denham
moved Amendments Nos. 121 and 122:

121: Clause 17, page 12, line 25, leave out “inter-species embryos” and insert “human admixed embryos”

122: Clause 17, page 12, line 27, leave out “inter-species embryos” and insert “human admixed embryos”

On Question, amendments agreed to.

Clause 19 [Procedure for refusal, variation or revocation of licence]:

Baroness Royall of Blaisdon
moved Amendment No. 123:

123: Clause 19, page 15, line 19, leave out “Authority” and insert “Secretary of State”

The noble Baroness said: Amendment No. 123 relates, together with Amendment No. 138, to licensing procedures. New Section 19B(1) provides that the HFEA may make directions concerning the form and content of applications under the 1990 Act and the information to be supplied with the application. New Section 19B(2) provides for a regulation-making power in relation to applications for the determination of licences under the Act. The power in the Bill as drafted was to be exercised by the HFEA. New Section 19B(3) provides details of what the regulations may provide; in particular, they may set out procedure in relation to the determination of licences, including requirements for people to give evidence or produce documents, and the admissibility of such evidence.

The Delegated Powers and Regulatory Reform Committee’s report stated, in relation to the procedure for a refusal and reconsideration for licences:

“We consider the powers to be appropriately delegated save that the power at clause 19B(3), to require persons (not just the applicant) to give evidence or to produce documents, should be exercised by the Secretary of State and subject to the negative procedure”.

The Government have accepted this recommendation and have tabled these amendments to change the regulation-making power so that it is exercisable by the Secretary of State, not the HFEA. This power is appropriately a matter for regulations, as it will add to the procedure required by new Section 19, rather than simply set out the procedure to be followed in greater detail. It will also ensure that developments in regulatory practice can properly be reflected in the procedures to be followed when making applications under the Act. The Government accept the principle that this matter should be subject to the level of scrutiny suggested by the Delegated Powers Committee. I beg to move.

On Question, amendment agreed to.

15:30:00

Clause 22 [Directions]:

Lord Darzi of Denham
moved Amendments Nos. 124 and 125:

124: Clause 22, page 18, line 12, leave out “inter-species embryos” and insert “human admixed embryos”

125: Clause 22, page 18, line 15, leave out “inter-species embryos” and insert “human admixed embryos”

On Question, amendments agreed to.

Clause 23 [Code of practice]:

[Amendment No. 126 not moved.]

Lord Darzi of Denham
moved Amendment No. 127:

127: Clause 23, page 19, line 6, leave out subsection (2) and insert—
 “(2) In subsection (2), for “a father” substitute “supportive parenting”.”

[Amendment No. 127A, as an amendment to Amendment No. 127, not moved.]

On Question, Amendment No. 127 agreed to.

Baroness Royall of Blaisdon
had given notice of her intention to move Amendment No. 128:

128: Clause 23, page 19, line 6, at end insert—
 “( ) After that subsection insert—
 “(2A) The code shall also give guidance about—
 (a) the giving of a suitable opportunity to receive proper counselling, and(b) the provision of such relevant information as is proper,in accordance with any condition that is by virtue of section 13(6) or (6A) a condition of a licence under paragraph 1 of Schedule 2.””

The noble Baroness said: My Lords, we have already debated government Amendment No. 128. At the time, further to the discussion, we agreed that we would take it back and come back with an alternative amendment. Therefore, I am proposing to take away this amendment, rather than move it formally, and come back with a replacement.

[Amendment No. 128 not moved.]

[Amendments Nos. 129 and 130 not moved.]

Clause 24 [Register of information]:

Earl Howe
moved Amendment No. 131:

131: Clause 24, page 21, line 2, leave out “has the same meaning as in section 31” and insert “means—
 (a) an individual as defined in section 31, or(b) where no request under subsection (2) has previously been made, a child of such an individual; ”

The noble Earl said: My Lords, I return to an issue I raised in Committee about the right that the Bill grants to a donor-conceived person to make a request to the registrar for identifiable and non-identifiable information about his or her donor parent. This right is entirely appropriate and worthy of our support. In Committee, I raised the question of whether this right should be extended to a child of a donor-conceived person in certain circumstances. There could be a situation in which a woman with children of her own discovers that she was donor-conceived, but dies before she has the chance to make an information request. In those circumstances, there would appear to be no means for anyone at all to obtain the relevant information from the authority.

I maintain that the child of a donor-conceived person has a very strong claim to that same information, not simply to satisfy his curiosity but to enable him to discover any information about heritable illness, about which his dead parent would have had a right to know. He also has a direct interest in wanting to avoid entering into an intimate relationship with a close blood relation. I have reworded my Committee amendments so as, I hope, to avoid the unwelcome possibility flagged up by the Minister that it could give rise to a request for information from all the children of a donor-conceived person, as opposed to just one of them; my intention being that the right to make an inquiry should be extended only once, either to the donor-conceived person or to a child of his.

I believe that the Bill as currently drafted is unnecessarily restrictive and I hope that the Minister will look at the amendment more favourably than she did before. I beg to move.

Lord Elton
My Lords, my noble friend’s scenario suggests that such things happen at a great pace and science also moves at an even greater pace. There may be occasions when it is extremely important for the future welfare of the child of the donor to know who the donor is in order to know whether some sort of preventive medicine or other necessary course is taken. I hope that the Government will listen carefully to the proposal.

Lord Alton of Liverpool
My Lords, I rise briefly to support the amendment. The noble Earl has put a very good case to the House. It builds on a case he made in Committee and that we have discussed in various contexts since then. I suspect that overwhelmingly we would all agree that where genetic issues and illness may be involved, it must be right that people have access to that information. Increasingly, with DNA testing becoming routine, these things will come to the surface. Therefore, I think that the cause of truth is served by this being done as early as possible and that we will have to move away from the right to know to the duty to tell—a matter we discussed at earlier stages. Even though we have not been able to find a comprehensive solution to this problem—let us hope that when they debate it in another place they will discuss some of the issues we have looked at and perhaps will think further on the question—as a discrete question, this is a good one for the noble Earl to have brought to the House. Certainly it has my support.

Lord Walton of Detchant
My Lords, I, too, wish to support the amendment very warmly for the reasons so lucidly put forward by the noble Earl, Lord Howe. It is an important amendment for exactly the reasons he gave. I hope that the Government will be able to support it.

Lord Patten
My Lords, I will not go through the arguments so fluently advanced by my noble friend on the Front Bench and by my noble friend Lord Elton. I shall simply add a footnote. Just as I think it is very important for a child in such a circumstance to have a sense of place and knowing where they belong, it is even more important for them to know not just for genetic reasons but for genealogical reasons where they come from. That is why I support this amendment.

Baroness Royall of Blaisdon
My Lords, the Bill allows for donor-conceived people to contact the HFEA on reaching the age of 16 to find out non-identifying information about their donor. Access to non-identifying information at age 16 is a new provision. The Bill also re-enacts existing provisions that allow an 18 year-old donor-conceived person to retrieve identifying information about their donor following the removal of donor anonymity in 2005.

The amendment seeks to enable the children of donor-conceived people to contact the HFEA to obtain information from the register regarding their parent’s donor, in the situation where the parent did not contact the HFEA themselves. We recognise that this information is likely to be of interest to the children of donor-conceived people if the donor-conceived person themselves has not accessed it. It would be a piece of information about the child’s genetic history, one step removed.

However, the purpose of allowing donor-conceived people access to information about their donor is to fill a gap in the knowledge they have about themselves. Many donor-conceived people feel that they are missing important information about who they are and where they came from because one set of genetic information is missing. Information, including identifying information, about the donor is intended to help address that. For that reason provisions are made to allow such people to find out about their donor, and donors sign up to donate on the understanding that such information will be made available. The Government believe that this sense of a gap would not apply in the same way for the children of donor-conceived people. Though they would have an interest in their genetic grandparent, they would not have the same sense of a gap in their knowledge about where they came from. They would know who their parents are.

We also have to consider the donor-conceived person themselves. The amendment would enable their children to request information about the donor while they themselves are still alive. What impact would this have on the family? How will the donor-conceived person feel if they themselves have made a decision not to ask for information and their child takes a different view? We need to consider all the interests and balance them. Since the removal of donor anonymity in 2005, donor-conceived children are able to get identifying information about their donor from the HFEA register. This includes the donor’s last-known address. If they are not conceived as a result of an identifiable donor, but were conceived after the HFEA register began, they can as a minimum find out non-identifying information about their donor. This information is rightly accessible to donor-conceived people and has a direct impact on them. The information is likely to be of interest to their children, but it does not have the same immediacy.

All those arguments still stand but I heard the persuasive argument put forward by the noble Earl about the children of donor-conceived adults who may have died. While the Government have considered this issue carefully and reached the conclusion that access to the HFEA register should continue to focus on those directly affected and that it should be a matter for personal decision by the donor-conceived person whether to access the information available, I am persuaded to take this back and look at the issue of the children of donor-conceived adults who have died. That is a particular case. I do not know what, if any, movement there might be on this, but I am willing to take it back. We have one week before Third Reading, so I am certainly not going to say I will come back by then, but I will ask my colleagues to look at this.

Lord Jenkin of Roding
My Lords, before the Minister sits down, there is one problem that has been put to me about this. I apologise to my noble friend for not being in the House at the moment he rose. There are quite a lot of donor-conceived children who are born after treatment approved by the authority when the woman becomes pregnant. Thereafter, no information from the clinic may actually reach the authority, and even the clinic may not know whether a child has been born from that treatment. In her further consideration, can the noble Baroness confirm that there is no obligation on either the parents or the clinic to let anybody know that it was successful and a child was born?

Baroness Royall of Blaisdon
My Lords, I will have to come back to the noble Lord with clarification on that issue. I will gladly do so.

Lord Winston
My Lords, before the noble Baroness sits down, I have had personal experience of exactly that happening—parents deliberately refusing to communicate with the clinic after the birth of a child, and doing so repeatedly. This is a point of law which might not be enforceable.

Earl Howe
My Lords, I am grateful to all noble Lords who spoke in favour of the amendment, as it undoubtedly influenced the Minister in her generous decision to take this issue back and look at it again. If I were the child of a donor-conceived person and my parent had died but I knew that he or she had been donor-conceived, I would have a direct interest in wishing to avoid marrying my own aunt. Considerations of that kind are extremely powerful, and as powerful for the donor-conceived child himself. I ask the noble Baroness to look at the particular case she herself articulated. I am grateful to her for agreeing to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Restrictions on disclosure of information]:

Lord Patel
moved Amendment No. 132:

132: Clause 25, page 26, line 22, leave out “of information falling within any of paragraphs (b) to (e) of subsection (2) of section 31 and is”

The noble Lord said: My Lords, I spoke to this amendment, which addresses confidentiality, in Committee. Many clinicians working in the field of in vitro fertilisation have found this measure difficult to work with in practice. Professor Peter Braude from St Thomas’s Hospital has raised it with the Department of Health. He received a letter clarifying some of the issues raised by this amendment. Among other things the letter explains that there is a further exception to the prohibition on disclosure in the Human Fertilisation and Embryology Act, which was added by the Human Fertilisation and Embryology (Disclosure of Information) Act 1992. This Act allows a patient to consent to the disclosure of information for the purposes of their own treatment. The letter also explains that the restrictions in new Section 33A introduced in this Bill apply only to information held by HFEA licence holders in their capacity as such, and that the restrictions in the 1990 Act are designed to comply with the requirements set out in the European Union tissue and cells directive.

I confess that I remain unclear as to why the consent of the person to whom the information relates is not sufficient for it to be disclosed for any purposes the person chooses, subject, of course, to the privacy of any third parties, or why the restrictions on medical information pertaining to licensed IVF treatment are so much more onerous than those applicable to other forms of treatment, including infertility treatment that does not need to be licensed. It has always seemed anomalous to clinics as well as to the majority of patients that specific consent to disclose details of their treatment to others has been a requirement. Indeed, explaining the issue to patients is often greeted with surprise given that they have been used, in the preliminary assessments of their infertility and in the provision of first line treatment, to normal lines of communication between those who are involved in their care—for the most part hospital clinicians and general practitioners—being established without their permission being sought.

Clinical problems which could be in breach of the law include: gynaecological referrals of patients treated by the licence holder and their clinics; communication with other health professionals; admissions with complications after IVF treatment; antenatal care—which is where I mostly come across these patients—referral for screening; neonatal care and even clinical care in later life. All working in the sector would prefer a system that allowed the routine nature of IVF treatment to be acknowledged and for clinical staff to be able to communicate with colleagues routinely without fear of prosecution.

In other areas of sensitive medical practice such as mental illness, HIV and abortion, confidentiality issues do not seem to require the same degree of legislative imposition. In between Committee and Report, I was on a night flight to Cape Town and a lady on the other side of the aisle experienced difficulties with which I helped out. She was 26 weeks pregnant and informed me and the air hostesses that the pregnancy resulted from in vitro fertilisation. She even told me the name of the team looking after her during her pregnancy. The problem was solved very easily but she had no qualms telling everybody on the plane about her infertility problems. So patients do not require this degree of confidentiality.

I wonder how we might move this forward. It might be possible for the HFEA to provide guidance in its code of practice for clinicians to follow, particularly on patient safety issues. They would thus avoid breaching confidentiality laws, which carry draconian penalties if they are found guilty of breaking them. I beg to move.

Lord Winston
My Lords, I have pointed out in the past that confidentiality is a really difficult issue. Numerous Members of your Lordships’ House have made pleas for us doctors to take account of patients’ abilities as parents and the need for a father, or whatever phrase we have discussed, when assessing a patient’s suitability for in vitro fertilisation. With confidentiality as it is now it is inevitable that, if alarms are raised about some aspect of the past childcare of a person seeking in vitro fertilisation, we could not go to another individual without the permission of that person, who would clearly not give that permission. That is a very good example of why the confidentiality clause is, right from the beginning, a total nonsense. It goes against accepted medical practice in every other form of medicine. If your Lordships really want doctors to assess patients for their suitability to be good parents in the future, there has to be an acceptance that a patient’s confidentiality is at stake. That has not been grasped during the discussion of this Bill, and it seems a very important principle indeed.

Baroness Finlay of Llandaff
My Lords, I support the amendment and I will point out a problem that I can see arising if it is not made to the Bill.

These women have gone through huge emotional trauma in trying to conceive, about which we have heard much. We all know that women are at risk of a postnatal psychosis. I cannot see how clinicians can act in the best interests of the patient if they are hamstrung by a confidentiality clause which is outwith the normal rules of practice. The amendment seeks to regularise that position.

I also have a slight concern that those women who are insistent on very tight secrecy may actually be in a state of denial about the fact that they needed infertility treatment in the first place. In my mind, that could be a red flag indicating that they might be particularly at risk in the future, because it would suggest that they had not come to terms with the situation—unlike the patient treated on the aeroplane by the noble Lord, Lord Patel, who was not in a state of denial.

The amendment is important for the functioning of clinical practice in the best interests of patients.

Lord Walton of Detchant
My Lords, I very heartily support the amendment. No privilege attaches to communications between doctors and patients in the same way as it does between lawyers and clients. In France, of course, under the Code Napoléon, medical confidentiality is absolute. However, over many years the General Medical Council—of which I once had the privilege to be president—struggled with medical confidentiality issues and came up with the recognition that there are circumstances where it is perfectly proper for a doctor to breach confidentiality, not least in a situation such as assisting the police in the investigation of a serious crime. Even in a lesser situation, such as where an individual continues to drive against his or her doctor’s advice despite having repeated epileptic attacks, the doctor has the right, after explaining everything to the patient, to report them to the licensing authorities. Many other exclusions can arise.

One of the principles of medical care is that it is proper, usually with the patient’s consent, to share medical information with other members of the healthcare team involved in the medical care of that individual. In that situation, because the rules relating to the HFEA and the disclosure of information about individuals who have undergone IVF treatment are so clear, so precise and so restrictive, there is every likelihood that a doctor involved in clinical practice—not least in gynaecology or in giving advice on other infertility issues in the course of ordinary clinical practice—may inadvertently breach the HFEA rules. That is particularly the case if the individual in question not only practises, say, as a gynaecologist or as someone interested in the problem of infertility, but works in a HFEA-licensed centre as a clinician. They could well be in breach of the Act and liable to criminal prosecution for revealing information about IVF treatment that had previously been undertaken, which would be clearly very important in the management of that individual’s care.

One could give many other examples, but I can only say that I strongly support the amendment, because the principles are of crucial importance to the practice of medicine.

Baroness Butler-Sloss
My Lords, I am very impressed by those noble Lords who have spoken who are members of the medical profession. Until I heard the speeches, particularly those of the noble Lords, Lord Patel and Lord Winston, I had not appreciated the dangers that medical teams may be in for unknowingly being in breach. The amendment seems to meet a very important need for medical teams, and I strongly support it.

Lord Turnberg
My Lords, I strongly support the amendment not so much because of the impact on the medical profession but because of the risks to the patients, which should be the driver for this amendment. The risks to patients of information not being shared with other healthcare workers are considerable.

Lord Jenkin of Roding
My Lords, I, too, support the amendment. I say to the noble Lord, Lord Patel, that if I found myself on a long flight while 26 weeks pregnant—which I have to say is unlikely—there are few members of the human race that I would rather share the plane with than him.

My question is not in relation to the patient him or herself, which is obviously a matter to which noble Lords on all sides of the House have given attention. The problem is that, as I understand it, the amendment is anxious to use the information for the benefit of patients generally, for the practice of medical care and for everything that is in the amendment. I would have thought that of course the rest of the team will know who the patient is, but if you wish to disclose information about a particular case that could be of wider interest to the professions involved, surely anonymity is a protection.

We had this over and again in debating the Human Tissue Act, which I am sorry to come back to again. It is the question of how far anonymising data would be a protection. If one is going to provide information, even to the extent of writing an article for a medical journal, you would not dream of mentioning the patient’s name or anything else about him or her, because it would be anonymised. At the same time, there might be valuable information that should be available to the professions.

The puzzled look on the face of the noble Lord, Lord Winston, suggests that I am barking up a very wrong tree; in which case I will sit down.

16:00:00

Baroness Barker
My Lords, I support the noble Lord, Lord Patel, as I did in Committee. I have always been slightly surprised that the issue is so powerful and emotive. Clearly, that was so when the noble Baroness, Lady Warnock, did her report; and we have had the legislation that we have had. I say that because the first successful IVF treatment resulted in such huge coverage in every newspaper in the world. The birth of Louise Brown and the way in which it was reported sent a general feeling throughout the land about this treatment. I firmly believe it is in part because of that that today, informally, this is not a great matter of shame; it is very commonly talked about. I say that because, apart from the issues that the noble Lord, Lord Patel, has rightly raised about the damaging limitations that these strictures place on care—particularly the antenatal care of individual woman—it is wise, when considering this matter, to take into account public opinion, which if anything has become much more open and well disposed towards disclosure over the past 20 years.

In 2005, the department, as part of its review of the HFEA Act 1990, proposed that confidentiality provisions should be revised so that information about assisted reproductive treatment was treated in exactly the same way as any other medical information. That element of the consultation brought forward general agreement. People could not, in general, understand why this information should be treated differently. I note the point made by the noble Lord, Lord Jenkin, about anonymised data, but my understanding is that the amendment would simply replicate that which is in the Human Tissue Act, so there would be no question of individual patient data being widely reported outside the medical profession. That is not what is proposed, as indeed it should not be. The amendment would make a tremendous difference to healthcare practitioners who frankly get round the law to work in the best interests of their patients. I do not believe that they should have to do that in future.

Baroness Royall of Blaisdon
My Lords, the amendments of the noble Lord, Lord Patel, address the important issue of the disclosure by the Human Fertilisation and Embryology Authority, by HFEA licence holders and others, of identifying information about people who receive certain types of licensed infertility treatment, those born as a result of such treatment and those who donate their gametes or embryos for certain types of treatment, or for research. The issue calls for very careful consideration of the value of such information being shared—for instance, with other health professionals involved in patients’ care—balanced against the rights of patients to have their information treated confidentially.

This is a complex area and it may be helpful if I outline the aims of the 1990 Act and the Bill in this respect. Essentially, the 1990 Act provides that the HFEA, people who work in licensed centres, and certain others, shall not release identifying information about certain types of patient, donors or those born as a result of certain types of treatment. The Act also provides exceptions to this prohibition so that it does not apply in specified circumstances. This recognises the principle of patient confidentiality while also acknowledging that there are circumstances where it may be appropriate to disclose such information. I also stress that it is not a case of disclosure being able to take place if the prohibitions in the 1990 Act and the Bill were not to apply. The provisions of the Data Protection Act 1998 would remain relevant, as would the common law on confidentiality and other relevant laws.

Clause 25 introduces new sections setting out in one place the prohibition on the disclosure of identifying information which the Act imposes and the exceptions to that prohibition. These sections consolidate the exceptions contained in the 1990 Act and add new ones. They also introduce a new regulation-making power subject to the affirmative procedure—new Section 33C—which will enable regulations to be made allowing the disclosure of identifying information without consent for the purposes of medical or other research which is necessary or expedient in the public interest, or in the interests of improving patient care. The regulations are required to be subject to consultation beforehand.

The exceptions in the Bill have been extended in recognition of the fact that a wider range of people may now need access to the information held by licensed centres, the HFEA and others; for example, those working under a contract with the HFEA to discharge its statutory functions. The exceptions have also been extended to cover circumstances where the disclosure of information would be justified, such as disclosure of some types of information with the consent of persons to whom the information relates.

Amendment No. 132 concerns one of the exceptions to the prohibition on disclosure I have already referred to—subsection (2)(i) of new Section 33A. Currently, only recipients of infertility services can consent to their identifying information being disclosed. Those born as a result of such services and donors may not do so. Further, only clinics can disclose information about recipients on the basis of their consent. The HFEA is currently not able to do so. The new exceptions included in new Section 33A address this. They will enable disclosure of information in certain circumstances, not only about recipients of services but also about those born as a result and about donors. The Government believe that these exceptions will be helpful in enabling researchers to access the data which the HFEA and clinics hold about patients’ treatment. It will also enable information to be disclosed for healthcare purposes or for any other purpose where the relevant consents have been obtained.

The purpose of the noble Lord’s amendment appears to be to simplify the circumstances in which the particular exception at subsection (2)(i) of new Section 33A will apply. The exception applies where the people identified in the information consent to its disclosure. It would not, however, enable disclosure of information to a person born as a result of treatment services when they are under the age of 18 or enable consent to be sought from such a person.

The amendment is helpful. The provisions in the Bill are intended to simplify how the disclosure of identifying information with consent will work. I agree that the amendment would provide further simplification. On that basis I am happy to take it away for further consideration.

Amendment No. 133 adds a further category to the list of exceptions to the prohibition on disclosure of identifying information contained in the Bill. It would introduce a wide-ranging exception, lifting the prohibition on disclosure without the patient’s consent if, essentially, it is necessary or expedient in the public interest or in the interest of improving patient care. This would introduce a wide range of circumstances in which the prohibition on disclosure would not apply but where the patient’s consent to disclosure has not been obtained. I understand that the noble Lord is seeking to ensure that the prohibition on disclosure is not unreasonable, but I can assure him that we have sought to provide in the Bill a comprehensive list of exceptions to the prohibition on disclosure so that the prohibition will not apply in circumstances where disclosure is justifiable.

The NHS code of practice on confidentiality makes clear that confidential patient information should generally be disclosed only for healthcare purposes or purposes associated with healthcare with patient consent. We have therefore extended the categories of person in the Bill who can consent to disclosure of their information. We do not consider it appropriate for disclosure to be possible in the wide range of circumstances set out in the noble Lord’s amendment, where the relevant consents have not been obtained. For instance, it would lift the prohibition on disclosure of information about a patient’s care—for example, for medical diagnosis—where the patient does not consent to it. Further, the Government consider that the breadth of the exception would not provide sufficient certainty for the purpose of implementing the European Union tissue and cells directive.

It may be helpful if I mention a couple of additional points. Some believe that disclosure can be made only to a named person and that this is unnecessarily prohibitive. But it is a misconception that disclosure of identifying information to health professionals can be disclosed only to a specific, named individual. That has not been the case since the amendments made to the 1990 Act by the Human Fertilisation and Embryology (Disclosure of Information) Act 1992. We have not included in new subsection (6C) of the 1990 Act a requirement that disclosure must be to a named person. In any event, the current legislation already exempts the need for a named individual where disclosure is in connection with the provision of treatment services for the person giving consent.

There are also misconceptions about disclosure and written consent. Neither the 1990 Act nor the Bill requires consent to disclosure of identifying information to be in writing. It has to be said, however, that written consent does provide clarity that consent has been obtained.

I listened carefully to points made in the debate, especially by those noble Lords who work in healthcare. The Government’s considered view is that no further concessions are necessary in this area. However, it does seem to be the clear view of noble Lords that enabling further consent would be for the patient’s well-being. Healthcare seems to be the reasoning behind their arguments. Therefore, it is beholden on me to take this amendment back and take another look at it. We will then see whether it might be appropriate to have a similar amendment in the other place and whether this would fit into the broader picture in relation to the Human Tissue Act, human rights legislation and other things. I do not know whether that will be possible, but I am willing to take it back and ask my colleagues in another place to have a look at it.

Lord Winston
My Lords, I should like to give a brief scenario. A woman is attending for in vitro fertilisation and has started her treatment. As noble Lords will appreciate, it is an ongoing treatment. During the course of that treatment, some parallel evidence comes to light which suggests that there is a history of child abuse in that family. The only way of getting that information would be to seek advice, perhaps from another medical practitioner, possibly her general practitioner, but the patient refuses to give consent for any contact with another professional or with social services. What is the doctor’s responsibility under the law? It is certainly not clear to me.

Baroness Royall of Blaisdon
My Lords, that is an important and valid question. At this stage, the answer is not clear to me either. I will come back to the noble Lord in writing.

Lord Patel
My Lords, I thank the Minister for her response. Most of all, I thank those noble Lords who so strongly supported this amendment. I was merely a spokesman for colleagues, who hold a licence to treat infertile women and to provide in vitro treatment, and who come across this problem on a daily basis. The amendment clearly does not apply to situations in which gametes or embryos are donated. It applies to women who are undergoing in vitro fertilisation.

I shall give another example of something that used to happen on a weekly basis. When my colleagues, who were treating patients with infertility, were successful in achieving pregnancy by in vitro fertilisation and their patient’s care was passed on to me as an obstetrician, they used to have whisper the name of the patient to me in the corridor. I would then go and mark the notes with a red star so that my team would understand what that meant. Not being a licence-holder, presumably I was not committing a criminal act. However, if my colleague had put that down or written me a letter saying, “Please look after this lady”, that might, without consent, have been regarded as a criminal act.

Therefore, there are issues to be handled. The Minister was hesitant in replying, which meant that she was finding difficulty in knowing why such draconian confidentiality rules are put there in the first place. They are draconian and unnecessary. We are talking about what is now a well accepted medical treatment for people who are infertile. It is not 1978, when Louise Brown was born. It is not even 1990, when this Act was passed. It is today and more than a million children are born through this procedure. I am sure that the noble Lord, Lord Winston, will know the exact figures.

Lord Winston
To a single one.

Lord Patel
Touché. I hope that when the Minister says she will look at this and will ask her department to look at it, she will do so very seriously. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 133 not moved.]

16:15:00

Clause 26 [Mitochondrial donation]:

Lord Darzi of Denham
moved Amendment No. 134:

134: Clause 26, page 30, line 40, leave out “inter-species embryos” and insert “human admixed embryos”

On Question, amendment agreed to.

Clause 28 [Inspection, entry, search and seizure]:

Lord Darzi of Denham
moved Amendment No. 135:

135: Clause 28, page 32, line 6, leave out “inter-species embryo” and insert “human admixed embryo”

On Question, amendment agreed to.

Clause 29 [Offences under the 1990 Act]:

Lord Darzi of Denham
moved Amendment No. 136:

136: Clause 29, page 32, line 28, leave out “inter-species embryos” and insert “human admixed embryos”

On Question, amendment agreed to.

Lord Patel
moved Amendment No. 137:

137: Clause 29, page 33, line 18, at end insert—
 “(10B) It is a defence for a person (“the defendant”) charged with an offence of doing anything which, under section 3(1) or (1A), 4(1)(a) or 4A(2), cannot be done other than in pursuance of a licence, to prove that at the material time the defendant believed on reasonable grounds that what they did was not something to which the Act applied.”

The noble Lord said: My Lords, I am sure that Ministers will be pleased to hear that this is the last of my amendments. It is a probing amendment that relates to the defences to the various criminal offences under the Human Fertilisation and Embryology Act and the Bill. The penalties for those criminal offences are rather draconian, or rather stringent, as they probably ought to be but, none the less, there is a problem. A number of criminal offences are set out in the Bill. They include doing any of the following without a licence: storing gametes and creating, storing and using embryos. The terms “embryos” and “gametes” are, rightly, broadly defined in the Bill. For example, “embryos” include eggs that are in the process of fertilisation or are undergoing any other process capable of resulting in an embryo. “Gametes” are defined as including germ-line cells at any stage of maturity. The interpretation of both those terms, and therefore the application of the Bill and the requirement for licences are dependent on the current state of our scientific knowledge. However, our understanding of the processes by which eggs develop into embryos and cells develop into germ-line cells is incomplete. It is therefore possible that a researcher could store or carry out research on cells that are not at the outset of their research understood to be germ-line cells at any stage of maturity but, through developments in science, become recognised as early-stage germ-line cells, the storage or use of which requires a licence. It is also possible that a researcher could carry out procedures involving human cells that, contrary to current scientific understanding, give rise to gametes that are capable of resulting in embryos and are therefore embryos for the purposes of the Bill, the use and storage of which requires a licence.

It is essential that all researchers who knew or should have known that they are storing or using gametes or creating, storing or using embryos and therefore require a licence should be liable to criminal charges if they fail to obtain one. However, there should be a defence in those limited circumstances where a researcher can prove that he or she reasonably believed that what he or she was storing or creating was not a gamete or an embryo as defined in the Bill. This is a very limited defence because in practice it is likely to arise only in circumstances where the HFEA itself did not recognise the activity at the time it was commenced as being regulated; otherwise the researcher’s belief that the Act did not apply would generally have been unreasonable. Furthermore, under the defence, the researcher would have to cease the activity and seek a licence or destroy the material as soon as it became reasonably clear that that was necessary. I note that a similar defence is contained in the Human Tissue Act 2004. Ideally, it might have been better to amend the definitions, but that is probably not a viable option at this stage, or even in the near future. However, this is a real issue: the accidental creation of a parthenote is one such example, but there are many others. I ask the Minister to consider this amendment as a probing amendment. I beg to move.

Baroness Williams of Crosby
My Lords, perhaps I may throw into the debate some worries I have about what appears to be an eminently sensible amendment. Generally speaking, in the range of laws limiting what a citizen can do, the argument that one does not know the law is not usually provided as a reason why the person concerned may be exempted from the law. Indeed, if that were the case, a great many laws could not be applied at all. In this instance, one would expect most researchers to be familiar with the law or to have an obligation to make themselves familiar with it.

The other thing that troubles me very much about the amendment—though I recognise that it is eminently sensible in many ways—is how one proves that one did not know. It becomes a very subjective judgment whether the person concerned can show that they did not know what the legislation enabled them not to do. That troubles me because there would be a substantial reward for those who could go ahead with research that was not allowed by the licence but which could, if it happened, be beneficial in commercial terms.

Those two worries are such that they make it impossible for me to accept or support the amendment. I thought that I should raise the issue early so that other noble Lords can see whether they share my concerns.

Lord Alton of Liverpool
My Lords, I support the important points that the noble Baroness has just made. I was delighted to hear my noble friend Lord Patel say that this was a probing amendment. Unlike the earlier amendments which he moved, when he put forward very good clinical grounds by centring on the care and the needs of the patient, this time we are looking at something altogether different. It is the retrospectivity of this that worries me in addition to the points that the noble Baroness has just made—the ability to put something right after the event which is implied in the amendment. My noble friend said when he moved the amendment that he recognised—these are his words—that there should be stringent penalties and there ought to be proper prohibitions. I agree with him about that. The kind of people who will be carrying out this research, as the noble Baroness has just intimated, will be competent individuals who should have read the regulations and know the law.

I look forward to hearing the Minister’s reply in due course. In a way, however, I think that the answer to the conundrum that my noble friend offers the House is in the penultimate line of his amendment where he talks about “reasonable grounds”. If there are reasonable grounds and a researcher were to be prosecuted, then I am certain that the courts would find in favour of the litigant rather than on behalf of the person who was bringing the prosecution, possibly on vexatious grounds. I think that the answer is already in the amendment. I therefore hope that my noble friend will not feel the need to press this too far. 

All of us are worried about those who might try to circumvent the law. I know that the noble Lord would share my indignation should anyone seek to try and do that. He may well be correct that the definitions of gametes, embryos and cell lines defy our ability to be crystal clear, as they have done throughout our proceedings. However, anyone reading this legislation once it has passed, in conjunction with the Hansard reports accompanying it, will be in no doubt at all about what Parliament’s intentions were. I would be nervous about anything that gave anybody literally “a licence” to circumvent procedures. I would be anxious about anything that seemed to dilute our determination to prosecute those who deliberately violated the law. I therefore hope that my noble friend will not feel the need to press this further today.

Baroness Knight of Collingtree
My Lords, one of the many lessons I learnt at the other end of the Corridor, during a very long time as a Member of Parliament, was the danger of using the word “reasonable”. As was frequently pointed out, what is reasonable to one person is not reasonable to another. I can think of at least one Bill that fell at that hurdle because there was no way of being absolutely certain that everyone would accept that something was “reasonable”.

Another thing that worries me about the amendment is that it echoes some of the current problems with certain Members of Parliament saying, “I thought I did adhere to all the rules and laws about money. Oh dear, I didn’t—but I was being perfectly reasonable”. There is real danger in failing to acknowledge that Bills must be clear. We have been taught the lesson time and again even if we have not learnt it. Legislation must mean the same thing to different people. If it does not, it could be translated in a way that is very convenient to some people. I am not saying that I am against the amendment per se. I am just saying that the way in which it is worded will open great difficulties down the line.

Lord Mackay of Clashfern
My Lords, it is true that the thrust of the noble Lord’s amendment is that the basic definitions used in the Bill are lacking in precision. If Parliament is creating criminal offences with considerable penalties, it has a fundamental obligation to ensure that the terms used in the formulation of the offences are sufficiently clear so that anyone with a reasonable knowledge of the area will know whether he or she was transgressing the prohibitions.

Lord Maclennan of Rogart
My Lords, it seems to me that the point that the noble Lord, Lord Patel, was addressing, more than the possibility that the practitioner was ignorant of the scope and definition of the law, was that he or she was ignorant of a complete understanding of what he or she had been doing, as a result of which the actions were overtaken by the law and the applicability of the law was not necessarily understood. However, I may have misunderstood the thrust of his argument. If he was seeking to address the imprecision of the law rather than the inexactitude of the understanding of what the scientist was doing, we would obviously have to address the issue of the definitions in the Bill.

Baroness Barker
My Lords, throughout the Bill’s passage we on this Front Bench have been mindful of the fact that scientists are finding themselves in an extremely difficult position. Throughout its passage, they have been subject to unfair and somewhat crude criticism, not least the criticism that they have not sufficiently explained to the rest of us what they do. The evidence in all the briefings we have received is that the scientific community, the medical research charities and so on have gone to great lengths to try to explain to the rest of us things that, by definition, we do not know. It is precisely because scientists need to continue to enjoy the confidence of the general public that we believe that the amendment is misguided. I strongly agree with my noble friend Lady Williams of Crosby that, in other walks of life, ignorance of the law is not a defence. I do not believe that a case has as yet been made suggesting that that should not apply here.

I listened closely to the arguments of the noble Lord, Lord Patel, and I should like to ask him some questions. Can he say what is the likelihood of a researcher finding himself or herself in this position? Is it not the case that local ethics committees would be involved in licensing any research? Does that not therefore decrease the chances of a lone researcher committing the sort of offence outlined? Does he agree that if scientists at the cutting edge of knowledge are to continue to retain the general public’s confidence, only the highest standards will be permissible? Should we therefore not seek in any way to dilute the penalties they face? If they put themselves in a position where there is a lack of clarity, the potential for things to go wrong—badly wrong—is immense.

16:30:00

Lord Walton of Detchant
My Lords, this is an exceptionally complex and very sensitive area. If the noble and learned Lord, Lord Mackay, is right to suggest that the phraseology in legal terms used in the Act is insufficiently precise to define the circumstances that might lead to a breach of the Act being performed by a well-meaning individual carrying out research that he or she believed did not fall within the terms of the Act, then I would be greatly concerned. Equally, I would be greatly concerned if any attempt were made to make holes in the Act by passing an amendment that would make it possible for the unlicensed person to experiment on gametes or human embryos without being subject to the full force of the law.

My reading of the very carefully expressed wording of this amendment, so well proposed by my noble friend Lord Patel, would lead me to believe that the amendment deals solely with the very exceptional circumstance where an individual working with cells who was not licensed under the Act—cells which he or she firmly and sincerely believed were not anything to do with the terms set out in the Act—might be subject to criminal sanctions. I wish to be reassured that the Act as it stands is sufficiently precise for that circumstance not to arise. While I have every reason to feel that the Act must be sufficiently clear to prevent the so-called cowboy from experimenting in this highly sensitive field, at the same time the well-meaning and well-intentioned researcher must not be put in hazard, which was the purpose of the noble Lord’s amendment.

Lord Jenkin of Roding
My Lords, having listened now for several days to the debates on this Bill, including the debates we had on the question of definitions, I would have thought that any bona fide researcher who was engaged or who contemplated engaging in work involving cells, in the way that the noble Lord, Lord Walton of Detchant, has described, and who was in any doubt at all about whether it came within the Act would be extremely wise to go to the authority and say, “This is what I am proposing to do. Do I need a licence?”.

If the researcher is trying to evade the controls by arguing, perhaps on some technicality, that this did not come within the terms of the Act and is subsequently found to have been in breach, I will not be sorry for him. I think that he would have been able to protect himself and that he should have protected himself. Although I understand the case that has been made by the noble Lord, Lord Patel, and by others that some sort of defence of this sort is necessary, I go back to my early training in the law and say that ignorance of the law is not a defence. It may be an excuse and might have some impact on the penalty but it does not negate the offence.

I shall be interested to hear from the noble Lords, Lord Detchant and Lord Patel, and from the Minister, who I suspect will not like this amendment very much, as to whether or not that is right. Surely the message that we want to send out is, “If in doubt, ask”. Anything that suggests that that is not the wise thing to do is misguided.

Lord Neill of Bladen
My Lords, will the noble Lord, Lord Patel, clarify that he is talking not about research teams and providing a defence for them but about individual criminal liability? If the latter, will he consider the last line of the amendment? I know that I irritate him every time I make a point like this, but the last line of his amendment says,

“that what they did was not something to which the Act applied”.

Will he confirm that he does not mean that?

Baroness Royall of Blaisdon
My Lords, the amendment tabled by the noble Lord, Lord Patel, would add a further defence to the Human Fertilisation and Embryology Act 1990 for a person charged with an offence under the Act. It would allow a defendant to raise the defence that at the material time they believed that what they were doing was not something to which the Act applied. It would not be appropriate for a person working in this field, who may be storing gametes and creating, keeping or using embryos, not to be fully aware of the law and the requirement to hold a licence for such activities, which is set out clearly in the 1990 Act.

This is of course a complex area of the law, and situations may arise where scientists are working within ill defined parameters and experimentation sometimes produces different results from those expected. Indeed, the noble Lord, Lord Patel, outlined areas where specific problems arise. However, like the noble Baroness, Lady Williams, I do not believe that ignorance of the law in these areas should be a valid defence. This is a complex area of science, and people working in the field should be even more aware of what activities under the Act can be carried out only in pursuance of a licence. As the noble Lord, Lord Jenkin, said, if anyone is in doubt, they simply have to pick up the phone and consult the HFEA.

For proceedings to be brought to prosecute someone under the 1990 Act, the Crown Prosecution Service must first obtain consent from the Director of Public Prosecutions. This is not a common proceeding for criminal offences, and is reserved for offences where weighing the discretionary factors relevant to the decision to prosecute is likely to be a sensitive and difficult task. This therefore makes it desirable for the Crown Prosecution Service to obtain prior approval for a prosecution. If an offence is committed under the 1990 Act, the facts of the case would be looked at carefully and in detail before any proceedings were brought, as this is such a complex area.

The noble Lord, Lord Patel, said that the Human Tissue Act had a similar defence and asked why it was not appropriate for the Human Fertilisation and Embryology Bill also to have a similar defence. Although this is a defence under the Human Tissue Act, the activities that require a licence under the Human Fertilisation and Embryology Act 1990 relate to the handling of human embryos and gametes, and the sensitivity of these activities means that it is imperative that scientists are aware of whether their activities require a licence under the Act. The noble Baroness, Lady Barker, mentioned ethics committees. I believe that she is correct that ethics committees also consider applications for licences.

This is a very complex area, but at this time I invite the noble Lord to withdraw his amendment.

Lord Patel
My Lords, I thank the Minister for her response, and thank all noble Lords who have spoken. I particularly welcome the comments made by the noble and learned Lord, Lord Mackay of Clashfern. He has, in his customary manner, hit the nail on the head: the issue is that the imprecision of the definitions may lead to this problem. I fully subscribe to the comment made by some noble Lords that ignorance of the law is no defence. I do not challenge that whatsoever, despite the fact that the law might have been framed in the ignorance of science, which probably is a defence.

The current definitions are widely wide, which is probably wise, because that allows the regulator to consider current technology and foreseeable developments when granting and monitoring the licence. I am not talking about people deliberately setting out to break the law when they carry out research; I am talking about scientists doing bona fide research who accidentally stumble upon something because of science that falls under the Act, and who therefore, though they stop any further experiments, fall guilty of the offence.

Let me give an example. An oocyte that has been activated either by fertilisation or artificially is a reasonable definition of the beginnings of an embryo—so it might be hard to argue against the definition. You could say that it is really at the first mitotic division, as that is when the maternal and paternal DNA first get together. But that does not work for a parthenogenetically activated oocyte, as there is no paternal DNA. Where researchers are working on trying to improve or determine the quality of the egg that will lead to success in in vitro fertilisation, the intention of such research is to understand the molecular signals rather than to initiate cell division. However, very occasionally an egg that has been cultured may spontaneously divide. Under the current definition of the Act, those researchers will require a licence. If they stop further research and report it, will they then be liable? Can there be a vexatious litigation against them?

A definition that said that only an embryo at the two-cell, eight-cell or blastocyst stage was acceptable might be hard to defend, as each definition would be a little arbitrary. However, the point at which the embryonic genome becomes active at the four-cell stage in humans, when development no longer relies only on maternal—that is, oocyte-derived —products, would make some sense scientifically. I am merely giving examples of how definitions used in the Act do not conform with the developing science.

In terms of science, the Bill includes the definition of an embryo as an egg undergoing any other process capable of resulting in an embryo. The regulators have previously decided that a parthenote—a dividing unfertilised egg—is an embryo. Important research is being undertaken to understand the process by which eggs divide just before fertilisation. Errors at this stage of reproduction result in fertility failure, miscarriages and abnormalities in the foetus. This research has to be approved by the research ethics committee. That does not currently require an HFEA licence. Centres are carrying out such research on eggs and, as I said, the intention of that research is to understand the molecular signals rather than to initiate cell division. It is not appropriate to require an HFEA licence for all research on live human eggs simply to avoid a rare unplanned and unanticipated event. Such increased bureaucracy will seriously discourage research in the field. It is not my intention to do that.

This was a probing amendment to identify that there are areas where the researchers—scientists working on stem cell lines and not on embryos, for example—fall outside the regulation. In an attempt to understand how these lines differentiate—and this is a true example—those scientists found that adding in some factors took those lines one step forward to differentiation into different cell types. In an attempt to take it another step forward, when they added other factors they found that the lines retracted and they were back to stage one. If they had retracted further and gone back to the blastocyst stage, which could well happen, it would mean the creation of an embryo without a licence. The researchers would have had to stop that research, inform the regulators and take advice. They understand that. They do not intend to break the law. I was probing accidental happenings that fall within the law. I hope that I have made my point and that there will be enough on the record so that scientists who do not deliberately set out to break the law but who accidentally fall into this trap will be helped by this discussion and avoid any vexatious litigation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 [Regulations under the 1990 Act]:

Lord Darzi of Denham
moved Amendments Nos. 138 and 139:

138: Clause 30, page 33, line 28, leave out “or 19B(2) (which confer” and insert “(which confers”

139: Clause 30, page 34, line 14, leave out “(7)” and insert “(13)”

On Question, amendments agreed to.

Clause 31 [Power to make consequential provision]:

Lord Darzi of Denham
moved Amendments Nos. 140 and 141:

140: Clause 31, page 34, line 35, leave out “inter-species embryo” and insert “human admixed embryo”

141: Clause 31, page 34, line 36, leave out from “section” to end of line 37 and insert “4A(13) (power to amend definition of “human admixed embryo” and other terms)”

On Question, amendments agreed to.

16:45:00

Clause 35 [Woman married at time of treatment]:

Earl Howe
moved Amendment No. 141A:

141A: Clause 35, page 36, line 23, leave out subsection (2)

The noble Earl said: My Lords, we come to an issue that has not previously been raised in our debates—surrogacy. Surrogate parenthood is a practice that has grown in popularity in a number of countries around the world in recent years. Canada, Ukraine and California are examples of jurisdictions in which legislation is in place that could be seen as actively encouraging surrogacy. The usual arrangement is that the male partner in a marriage or heterosexual relationship or one partner in a male single-sex relationship will provide the sperm that will fertilise the egg of a donor and the resulting embryo will be implanted into the carrying mother, who is usually described as a “surrogate mother” or “gestational carrier”. In other cases, the female commissioning parent may be the genetic parent; in yet others, both commissioning parents are the genetic parents.

In the three jurisdictions that I mentioned, surrogacy contracts have legal effect. Contracts will be entered into between the egg donor and the commissioning parents, and between the carrying mother and her husband, if she has one, and the commissioning parents, which provide that the child will be delivered into their custody on birth and that the egg donor and carrying mother, and her husband, relinquish all rights. The court then makes an order declaring the commissioning parents to be the legal parents and the child is registered as the child of the commissioning parents.

In English law, contracts of this kind have no force or effect, nor do any orders or registrations that are made pursuant to them. Section 27 of the 1990 Act provides that, if a child is being carried by a woman who has been artificially inseminated or has had introduced into her eggs and sperm or an embryo, that woman is to be treated as the mother for all purposes; no other person is to be regarded as the mother, whether or not she is genetically related to the child, and wherever this takes place. That provision gives the carrying woman parental status and parental responsibility, which can be lost only through a parental order or through adoption.

Under Section 28(2), reproduced in this Bill in Clause 35, if a woman who is a party to a marriage is carrying a child as the result of the placing in her of eggs and sperm or an embryo, or by artificial insemination, and the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the treatment by which she became pregnant. This is irrespective of the fact that the husband may have consented to his wife carrying the baby under a surrogacy arrangement. The genetic father is to be,

“treated in law as not being the father for any purpose”.

It is clear from the House of Lords debates in 1990 that Section 28(2) was intended to cover the position of conventional donor insemination, when a couple want to create a family for themselves and the sperm donor wishes nothing to do with the child. There was only a passing reference to surrogacy in the debates, when it was said that there would not be many such cases and that the commissioning parents would have to apply to adopt. However, no thought appears to have been given to the international dimension.

In a case such as the one that I described, the effect of Section 28(2) in English law is that the child will always be the child of the carrying mother and of her husband, if she is married. I repeat that this is translated into this Bill in Clause 35. In international law, where there is a court order and registration of the surrogacy arrangement, the child is legally the child of the commissioning parents in the state of origin. Thus, if a child is conceived and born abroad as a result of a surrogacy arrangement, registered as the child of the commissioning parents in that jurisdiction and subsequently brought into this country, significant problems arise. The child will be, in effect, parentless and stateless. In the state of origin he is the child of the commissioning parents, while in our law he is the child of the carrying mother and her husband; the commissioning parents have no status. If the commissioning parents happen to be British, the child would have no right to British citizenship and would technically be an illegal immigrant if brought here. On the other hand, if the child were brought here, it would be impossible for the court to send him back to the state of origin, because the surrogate mother there has no parental rights.

There are only two solutions for the commissioning parents under current law: a private fostering arrangement or a parental order. Private fostering entails local authority supervision, with its attendant inquiries and monitoring. To qualify for a parental order, an applicant has to meet a number of clear conditions, one of which is that the application has to be made within six months of the birth. If this condition is not met, the commissioning parents would have only one other option in order to acquire the legal status of parents, which is to apply for an adoption order. However, that process takes at least three years and the outcome is by no means guaranteed. Let us remember that this is a situation where the man who has commissioned the child is also that child’s genetic father, yet in law they are treated as being unrelated.

The anomaly, however, is that if the surrogate mother is not married, most of these problems do not arise. I am talking here about a surrogate mother who is overseas. In such a case, the genetic father is the natural putative father of the child and the child is treated as his illegitimate child. Thus the father is able to apply for parental responsibility, which the carrying mother can also grant by agreement; he can also apply, as of right, for Section 8 Children Act orders. He does not have to notify the local authority if the child is living with him; he can apply to adopt after the child has been living with him for 10 weeks, or for six months if adopting with a partner; and the child is entitled to British citizenship, succession rights and the rights that follow from being his child for the purpose of prohibited degrees of relationships. None of those things applies if the surrogate mother is married.

A big question arises as to whether our law and this Bill are human rights compliant. In my opinion—I say this having received advice from a QC in this field—there are strong arguments that, in its effect in surrogacy cases, Section 28(2) of the 1990 Act and, therefore, Clause 35 of this Bill are in breach of the rights to private and family life, particularly in respect of immigration and in relation to both child and genetic parent, and probably to the genetic parent’s spouse or partner as well. There may be cases where a parental order is not available—for instance, where consent is withdrawn—in which case the lack of ability to apply for, or be granted, parental responsibility will create a serious problem, particularly in the context of the period that must elapse before an adoption application can be commenced. The fact that the child born to the unmarried surrogate has a wholly different status and the father of such a child has radically different rights and responsibilities seems to me to be anomalous.

I have covered only in outline the various ramifications of this issue and, rather than detaining the House further, I simply ask the Minister to give an undertaking to take these matters away and examine them carefully prior to Third Reading. They need to be properly grappled with. I beg to move.

Lord Elton
My Lords, I congratulate my noble friend on having sussed this out.

Baroness Royall of Blaisdon
My Lords, I, too, congratulate the noble Earl on his probing of the law on surrogacy. It is a complex area, even if no international element is involved. We advise couples who are contemplating surrogacy to take expert legal advice at an early stage, certainly before deciding whether to proceed. That would be the case whether the surrogacy were to be in the UK or elsewhere. A range of complex issues affects the law on surrogacy—whose gametes will be used, whether the surrogate is married, the country where the surrogacy takes place, the laws in that country in relation to parenthood following surrogacy and the recognition of those laws in this country. It is not an arrangement that should be undertaken lightly. In the same way, I do not want to attempt to answer the points raised by the noble Earl without reflecting carefully on them and getting proper guidance.

However, I will briefly describe the clauses to which the noble Earl refers. The purpose of Clause 35(2) is to make it clear that, where a married couple is treated with donor gametes, whether the treatment is in the United Kingdom or abroad, the husband of the woman who is treated is the father of the child. That applies unless it is shown that he did not consent to that treatment. This simple provision recognises the parenthood of married men when their wives have babies and donated gametes are used to conceive the child. For the provision to have effect, the conception must involve assisted conception. Clause 35 will not apply if the conception is as a result of sexual intercourse. The provision is there to make it clear that, if a married woman conceives a child through the use of donor gametes in whatever circumstances, her husband is the father as long as he consented to the use of the donor gametes.

Clause 54 is about the conditions that must apply before a parental order, which is a fast-track adoption, can be given by a court. Parental orders are given in very specific circumstances to transfer the parenthood of a child to the commissioning couple following a surrogacy arrangement. They are a form of light-touch adoption, in terms of the processes that will be applied, because one of the commissioning parents must be a genetic parent of the child. The social services are alerted to cases of surrogacy but, for the parental order to be given, the lengthy process of determining the suitability of various couples for the adoption of the child will not be engaged because one or both of the new parents will be a biological parent.

The Bill proposes that the eligibility for parental orders be extended so that civil partners and unmarried couples may apply rather than just married couples. For the order to be given, either or both of the applicants must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man. The amendment seeks to remove this provision. The noble Earl raises important potential problems relating to children born of surrogate mothers who are married and living overseas. He cited what could be strong arguments that Clause 35 is in breach of human rights law. I am certainly not in a position to respond today, but I will take the issue away and come back at Third Reading. Therefore, I ask the noble Earl to withdraw the amendment at this stage.

Earl Howe
My Lords, I am grateful to the Minister for her reply. I can ask for no more than what she has kindly offered to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

17:00:00

Clause 46 [Embryo transferred after death of civil partner or intended female parent]:

Lord Mackay of Clashfern
moved Amendment No. 142:

142: Clause 46, leave out Clause 46

The noble and learned Lord said: My Lords, the noble Baroness, Lady Deech, tabled the amendment, but unfortunately she is not able to be with us this evening and so invited me to take her place in dealing with the matter. Your Lordships will be relieved to know that this has nothing whatever to do with any kind of definition; it is a simpler issue.

One of the situations covered by Clause 46 is that,

“the child has been carried by W as the result of placing in her of an embryo”.

That is the first point, which relates to what I assume is not the natural way of doing what was intended here, although it might be enough to cover that. Secondly, it must be that,

“the embryo was created at a time when W was a party to a civil partnership”.

So, at the time of the creation of the embryo there has to have been a civil partnership. Then, it must be that,

“the other party to the civil partnership died before the placing of the embryo in the woman”.

There was, then, some interval of time between the creation of the embryo and the placing of it in the woman W—“W” seems to be the initial that one uses for a woman in this provision. That interval might be quite long, depending on the circumstances. Then it must be that,

“the other party to the civil partnership consented in writing (and did not withdraw the consent) … to the placing of the embryo in W after the death of the other party”.

I assume that the consent was given before her death, but she consented to the placing of the embryo in W after her death. She had also to agree,

“to being treated for the purpose mentioned in subsection (4) as the parent of any resulting child”.

The purpose mentioned in Clause 46(4) is to be registered as a parent, and nothing more than that.

You start off with a situation in which this person who was a party to a civil partnership has agreed to these two particular conditions. Now what happens to the child? Possibly more than one child is born because it is at the embryo stage. It then must be that W—the lady carrying the child or children—has,

“elected in writing not later than the end of the period of 42 days from the day on which the child was born for the other”,

party to the civil partnership,

“to be treated for the purpose mentioned in subsection (4) as the parent of the child”.

This person, who may have been dead for quite a long time, is to be treated as the parent of the child for the purpose of registration if the woman who has carried the child decides that that should be so—and not otherwise. If all this happens, the provision is that the child will be registered with this dead woman as a parent.

What is the purpose of this provision? It seems an elaborate provision to secure a registration. The answer is to be found in Clause 48(4). It says there that, where Clause 46(1) or (2) apply—I have taken only the example of Clause 46(1), but the considerations are similar for Clause 46(2)—the deceased woman,

“is to be treated in law as a parent of the child for the purpose mentioned in section 46(4)”,

that is, for registration. Yet, she,

“is to be treated in law as not being a parent of the child for any other purpose”.

The only purpose for which all this elaborate procedure is designed is to secure that the dead woman is named on the child’s birth certificate. I cannot understand the purpose of that; you cannot rely on it for any other purpose, according to the provision that I have just read. I am interested to know what good it does to put on to the register of births, marriages and deaths the name of a deceased person who is not to be treated as the parent of the child for any other purpose than to appear in the registration. That seems to require some explanation.

My other point is that the Government have been reluctant, despite some people wishing it, to require donor conceptions to be marked on the register. Yet this will inevitably mean that the child in question is marked on the register as donor conceived because there is no way in which two women—one the mother and the other a parent—could have produced the child in any other way given the present status of science. That is the present situation, whatever the future may hold. Therefore, this measure would inevitably result in putting on the register the fact that this child is donor conceived when the Government have declined to do that in respect of other donor-conceived children.

Moreover, this type of provision is apt to be blamed on scientists. Sometimes people say that scientists, including doctors, have developed all these procedures. But this is nothing to do with that science; some other motivation is behind this measure. I am not sure exactly what it is; perhaps we shall hear. However, one of the results is that the child in respect of whom this provision applies will be strongly differentiated from the vast majority of other children. Therefore, the equality agenda under which all this appears to have taken place seems to apply only to adults; the children will be subject to severe differentiation in the application of this doctrine. I await with interest the response to the suggestion that this clause be deleted. I beg to move.

Lord Darzi of Denham
My Lords, I wish to address the three amendments tabled by the noble Baroness, Lady Deech, which were eloquently explained on her behalf by the noble and learned Lord, Lord Mackay.

I should make it clear what the Bill does in respect of same-sex couples and birth certificates. At present, we have the invidious situation where the female partner of a woman who gives birth following assisted reproduction treatment is not recognised as a parent of the child. I say it is invidious not only because it causes a disparity between same-sex couples and heterosexual couples, but because this means that the child would have a “legal” relationship with only one parent and not two. The Civil Partnership Act 2004 allowed for the acquisition of parental responsibility, but it did not provide for joint legal parenthood following assisted conception treatment. The Bill now addresses this.

The Bill allows female couples, whether they are in a civil partnership or are being “treated together”, to both be legal parents of a child born through assisted conception. The Bill includes amendments to other Acts that allow the second female parent to be registered on the child’s birth certificate under English and Welsh, Scottish, and Northern Irish law. The amendments of the noble Baroness, Lady Deech, would take these provisions out of the Bill.

A number of consequences flow from the information recorded in the birth register. Birth certificates are used as prime evidence of status as well as of rights to benefits, passports, inheritance, and parentage. For example, where parents are not married to each other, the father will acquire parental responsibility by registering the child jointly with the child’s mother under the Children Act 1989, or, for Scotland, the Children (Scotland) Act 1995, as amended by the Family Law (Scotland) Act 2006, or in Northern Ireland, the Children (Northern Ireland) Order 1995. In addition, a child’s birth is required to be reregistered under the Legitimacy Act 1976 when the parents marry after the birth, thus providing evidence of legitimation. A further example is that a father named on a birth certificate is evidence for liability for child support payments.

Birth registration needs to be updated with our changing times. When the 1990 Act came into force it allowed fathers to be recorded on a child’s birth certificate, following assisted conception treatment, where they were not in fact the genetic father of the child because donated sperm was used. The 1990 Act specifically excludes the sperm donor from being the father of any child born through assisted conception as a result of his donation. Therefore, where donated sperm or eggs are used, the birth certificate does not record the donor as a parent, and therefore is no longer a record of genetic parentage.

Currently, where a single woman receives infertility treatment at a licensed centre, only one name would go on the child’s birth certificate. I am of the view that where there would not be a father, but there would be a same-sex partner, surely it must follow that having two legal parents recorded is better than having only one.

I believe that by allowing same-sex couples legal responsibility for a child born through assisted conception treatment, we are also safeguarding the welfare of the child. We must all recognise that same-sex couples do have children. However, on occasion female couples may need infertility treatment to help them have a child, as do heterosexual couples. By allowing them to go to a licensed centre and both register as the child’s parents we hope we would dissuade same-sex couples from carrying out unlicensed self-insemination at home. It also means that, in the event that something happened to the mother, there is another person who is the legal parent of that child.

Let me again clarify that birth certificates will not record that a child will have two mothers. The Bill sets out that the woman who gives birth to the child will be the mother and her female partner will be recorded as a parent. That is not a wholly new concept. Currently, if a same-sex female couple have a child as a result of assisted conception treatment, only the mother’s name will go on the birth certificate. If the second parent then goes through the process of adopting the child, an adoption certificate will be produced that has the mother’s name and the name of the second parent.

For married couples there is a presumption of legitimacy, when a child is born, that the husband of the mother is the father of the child, and he will automatically be recorded as such on the birth certificate unless proven otherwise. As your Lordships will recognise, births are already recorded where the husband of the mother is not in fact the genetic father and another man is. If the mother conceals that fact or is not certain which man is the father of her child, the birth register will contain an inaccuracy. I am not insinuating that that is acceptable behaviour; I am merely using this as an example to explain that birth certificates cannot necessarily be relied on to trace one’s genetic heritage.

With this in mind, the clauses in the Bill which confer legal parenthood on female second parents, and make consequential amendments to birth registration law, are there so that second female parents can have the same responsibilities entrusted to them as any mother or father.

I now turn to Amendment No. 142. The Bill consolidates the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 into the 1990 Act and extends them to same-sex couples. The 2003 Act allows for the registration of a man as a father to a child born as a result of assisted reproduction with donor sperm, when the embryo was created before his death but had not been transferred to his partner before he died. Clause 46 seeks to address any disparity by extending this provision to same-sex couples. In the case of female civil partners or female couples who are not civil partners, the Bill allows for the partner who would have been the parent of the child to be registered as such on the register of births if she dies before the embryo is transferred.

These provisions are intended to address a tragic scenario. They will apply where a couple have started assisted reproduction treatment to have a child together using donor sperm and an embryo has been created, but the partner of the prospective mother dies before the treatment has been completed.

The law applies for heterosexual couples, and I cannot see why it would not apply to single-sex couples, taking into consideration that the mother or the parent will have the choice of making that registration. In such rare situations, there are safeguards in place to ensure that the name is only recorded on the child’s birth certificate with the knowledge and consent of both parties. The provision allows for the child, in these circumstances, which are rare, to have two parents recorded on the birth certificate rather than one.

To sum up, all the provisions that I have outlined are in place to correct the current disparity and in turn to help safeguard the welfare of the child born through assisted conception treatment. Having two parents recorded on the birth certificate will help to achieve that. I invite the noble and learned Lord, Lord Mackay, to withdraw the amendment.

17:15:00

Lord Mackay of Clashfern
My Lords, I appreciate what the noble Lord said about the general situation; however, I only moved the amendment to Clause 46. The Bill makes it absolutely plain that it is nothing but registration; otherwise it is absolutely pointless. At the moment, I cannot see any particular reason for that. However, I do not wish to press the amendment. I am content to allow the clause to stand part of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Parental orders]:

[Amendment No. 142A not moved.]

Baroness Williams of Crosby
moved Amendment No. 143:

143: After Clause 56, insert the following new Clause—
 “National Human Bioethics Commission
 (1) There is to be a body corporate called the National Human Bioethics Commission.
 (2) Schedule (National Human Bioethics Commission) has effect.”

The noble Baroness said: My Lords, I shall also speak to Amendment No. 144. Noble Lords will remember that on Second Reading the noble Lord, Lord Brennan, who was then in fine health, proposed that there should be a human bioethics commission in this country, with a lengthy, detailed schedule indicating the ways in which the commission might be composed and the functions that it would have to carry out. That was followed by a speech by the noble Lord, Lord Alton, who spoke in some detail a month ago on the proposal. Therefore, I do not intend to cover the ground again, except very briefly. However, I will deal with a number of issues that have been raised since then in this House in debate and try to show that some of them are, to a great extent, due to a misconception.

First, such a commission would be appointed by the Secretary of State. Secondly, it would cover a wide range of relevant occupations—medical practitioners, research scientists, philosophers, ethicists and others who are concerned with science and the way in which science should be assisted and encouraged to be understood by a much wider public. Its functions would include monitoring scientific advances in bioethics, considering the ethical issues that arise and looking at the consequences of legislation passed by Parliament—I stress this—in the light of subsequent evidence.

We have as a House very much embraced the idea of pre-legislative scrutiny, to excellent effect. By and large, the legislation that comes before us that has been subjected to pre-legislative scrutiny is markedly better composed than that which has not. I strongly suggest that we also badly need post-legislative scrutiny. Very often when we pass legislation we do not know subsequently whether it has been to useful effect. If I may say so, with only a very brief reversion to a different subject altogether, if the Home Office had learnt to scrutinise in a post-legislative way, we might all have been spared a very great deal of pain over recent years.

My specific point on post-legislative scrutiny—we make almost no provision for it in the legislation that we pass—is relevant to the issue of scientific research. We have excellent debates. Over recent days, I have enjoyed what I can describe only as an incredibly intense tutorial in embryology and human fertilisation. I note that, very kindly, the Chief Whip is nodding to that. Those of us who are not scientists feel that we have gained an immense amount by sparing the time to be present during these debates.

The last time we discussed human embryology and fertilisation was in 2001 when the previous regulations were debated, and before that it was in 1990. That is three occasions for a major detailed debate over nearly 20 years. That is hardly adequate for the extraordinarily fast-moving scientific scene, when literally month by month one learns about discoveries, breakthroughs and new pieces of research, many of which raise the most intense ethical considerations. One of the arguments for a bioethics commission would be precisely to enable us to keep in touch with scientific advance, discuss it and look most closely at some of the ethical issues that necessarily flow from it.

In passing, I shall deal with one point made earlier. My noble friend Lady Barker referred—she could not have said anything more important—to the need to maintain public confidence in scientific research and in support for scientific research. I stress that because we are in a delicate situation in which public confidence could be lost quite rapidly. There are already considerable concerns. Anyone who reads the red-topped tabloids will know how extensive those concerns are and the extent to which scientific results are characterised in a way that is possibly partly intended to frighten people. Consequently, if there is no sense that Parliament and other bodies that represent the public are in close touch with what is going on, it will be relatively easy to lose that essential confidence. In this country we have not done so, so far. However, as we proceed with more and more unusual scientific discoveries and research, that danger grows, month by month.

We have to ask why there was such a chilly response in the House to the concept of a human bioethics commission. I shall deal, one by one but very quickly, with the objections that have been raised. I believe that they are based on a fundamental misconception of what is being proposed by my colleague the noble Lord, Lord Brennan, and of the arguments for a human bioethics commission. The first objection—I have to be frank—is that it would be a way in which the scientific luddites would get into a position to stop essential scientific research. Understandably there is a great deal of concern about scientific luddites, by which I mean people who simply have an obscurantist and negative view of any scientific research.

I find it hard to recognise that concern, which is about those appointed to a bioethics commission, given that the proposal made by the noble Lord, Lord Brennan, was precisely that the appointments should be made by the Secretary of State. That is in line with bioethics commissions in many other countries. In Australia the appointments are made by a Minister; in Germany the appointments are made by the Chancellor, the head of the Government; and in other countries one can see a consistent pattern of appointments taking that form. It is simply beyond belief that the Secretary of State could appoint a whole lot of obscurantist—let me be blunt—nutcases to sit on a bioethics commission. He or she would have to answer for that and the House would make life very hard for him or her if a whole set of appointments was essentially driven by dogmatism and not by an attempt to represent genuinely held and indeed intellectually well argued opinions across the whole spectrum.

The second argument is that the characteristic of religious and, again, obscurantist societies is to suggest that there should be a human bioethics commission. This simply flows from an extraordinary lack of knowledge, to which I will come back in a moment or two. The third objection, with which I will also deal briefly, is that it adds yet another layer of delay, regulation and general bureaucratic obstacles to be presented to scientific researchers.

I have already pointed out on the first argument that, in almost every case of a human bioethics commission anywhere in the rest of Europe and other parts of the world, particularly North America, the appointments are made by a Minister or a yet more senior figure, the head of government. That objection therefore falls.

I read the second argument repeated in Hansard extraordinarily often in our earlier debate. Let us pause for a moment: which countries have human bioethics commissions? Denmark, Finland, France, Germany, the Netherlands, Norway, Sweden, Switzerland, Canada and the United States. Of this group, a subsection is regarded as consisting of some of the most liberal societies in the world: the Scandinavians. All have a human bioethics commission, some with slightly different names, but all addressing ethical issues in medicine and human biology. All are deeply concerned with trying to educate their publics in what is meant by and involved in scientific research.

In addition to those countries, I may include every one of our co-members of the European Union—with the exception of the recent central European members of the European Commission that have only just got the idea and come on board—which attempt to conduct some form of educative approach to the general public. In the most remarkable case—surprisingly, you might think, the Republic of Ireland—the bioethics commission not only produces detailed reports on issues of public controversy but, uniquely among this whole group of countries, invites the public to comment before the report is approved by the Irish Dàil. Every single public comment is taken into account, discussed, considered and replied to, subject to parliamentary debate on the issue. There is no more complete effort at involving and empowering the public in discussions on scientific research than in the Republic of Ireland. However, others, notably Germany and the Scandinavian countries, make huge efforts in mounting seminars, discussions and sometimes meetings around the country to discuss these issues. Incidentally, there is a far more complete effort at education of the public in some of these countries—although not all—than in our own country, where much of the discussion is basically still in relatively private circumstances.

One country in this list where the discussion of human biological ethics has been politicised is of course the United States of America. The President dismissed the whole bioethics commission and replaced it with his own appointees, making a condition of that appointment that people had to be opposed to embryonic stem cell research. That was not what our debate suggested in this House, which was something very different: that human bioethics commissions belong to those simply trying to oppose scientific research.

In this country, we undoubtedly have some remarkable debate on bioethics. We know the distinguished record of the Nuffield Foundation and the body associated with the University of St Andrews which has engaged in detailed consideration of bioethics issues in Scotland. There are two great differences between these British bodies and the rest of Europe. First, they have no accountability whatever to Parliament and the public, whereas all the other countries have. Secondly, they are not publicly financed, as are the bioethics commissions in all those other countries. That is bound to raise some questions about whether there are interests to be considered, given the financial support that comes, in this country, entirely from the private sector. Does that matter? Yes, as it raises questions about how objective our consideration of bioethics issues is.

17:30:00

I recently went to a seminar at the Nuffield Foundation and was extremely impressed by it. It was very good indeed. However, that is hardly the point. There should be a body that is accountable to Parliament and to the public in a formal sense, not least because, frankly, COMETT—the body that brings together all the European bioethics committees—is the one that decides whether, for example, the European Commission should propose that cloning be forbidden throughout Europe. That is an important part of strengthening the regulations and issues which we have been discussing in this House. We are no longer a country entirely on our own. Few things are internationally more mobile than work on reproductive and other bioethical issues—I can hardly think of any. The brilliant exposition of the noble and learned Lord, Lord Mackay of Clashfern, has just been on the effects of the transportation of these ethical issues from one country to another, and the fact that laws are not generalised but specific. The one area in which they become generalised is the European Union, where we have no official standing.

Before coming to my conclusion, let me say that voices have been raised, perfectly properly, suggesting that we should have a parliamentary Select Committee on bioethics. That is fine by me—it is an excellent idea. In no way is there an exclusive alternative between a bioethics commission charged with responsibility to educate and involve the public in discussion of such issues, and a parliamentary Select Committee charged with responsibility to scrutinise and supervise in those long gaps—I repeat, three debates in 20 years on the issue—which now eventuate crucial scientific questions in an extraordinarily fast-moving scene. A parliamentary Select Committee would be good, but it does not offer an alternative.

I have to say something that I believe is highly relevant to the discussion. The noble Baroness, Lady Warnock, in an article printed in the Observer two weeks ago argued that, above all, bioethics was a question which properly belonged to the responsibility of Parliament. I am not going to disagree with her about that. That is a perfectly fair point—except, one has to add, speaking as someone who spent nearly 20 years as a Member in the other place, that there are two kinds of vote in Parliament. One is a free vote, where people decide, on the basis of what they have heard and after discussion, what they think the proper judgment ought to be. The other kind is a whipped vote. We have been speaking today—quite properly and with huge respect—about the noble Lord, Lord Grocott, the Chief Whip, who is just retiring. I can think of few people whom I would regard as a more outstanding example of a sympathetic, thoughtful and careful Chief Whip than him. I add that I am long enough in the tooth in government to know that there have to be whipped votes a good deal of the time in order to get the Government’s business through—that is the Whips’ job. However, in a democracy, that is only a sustainable argument if one recognises that there are some areas where people’s consciences are involved in such a way that they should not be compelled to vote against them.

I believe, and I will put it very strongly, that the right process was that which took place during the passage of the Human Fertilisation and Embryology Bill in 1990—one of the best Bills passed through this House. On this occasion, as we all know perfectly well, the government side has been very strictly whipped. That does not make it immoral, but it means that the outcomes do not reflect the judgments of this set of individuals as being not under pressure to move one way rather than the other.

A Government also have a right to push for Bills that they believe in. The Government have a right to press for this country to be the leading place in which human biology is conducted. There are arguments for that. However, we are entitled to ask, sometimes, what those motives might be. The Government may well see a remarkable opportunity for the country, one that arises from the gridlock in the United States over the issue of embryonic stem cell therapies and research. That has driven many outstanding scientists to this country from the US, where, unquestionably, there was bigotry on this issue on a large scale, and it came from the very top.

It is also the case that being the leading country in the field of human biology carries a huge responsibility to stay within the bounds of what prevents, as described by the most reverend Primate the Archbishop of Canterbury when last in this House, turning human beings into instruments for the purpose of commercial outcomes. We must be frank—the commercial pressures in this field are immense and potentially going to grow month by month. There is so much at stake—so much money—in people, for example, being able to determine such things as the sex of their own child.

This is not a kind of dream which I am having. Many noble Lords will know that the built-in hereditary preference for boys over girls has produced a surplus of what is estimated to be over 30 million young males in China, as against the women that they might one day marry. The social consequences of that are absolutely terrifying. They are consequences of producing a warrior people—a warrior race, if you like. We have to think about the social consequences. That is the argument for a human bioethics commission.

I will not go on, except to say that this case has been very much understated. We have to ask ourselves why every other European democracy, from Scandinavia to Spain, has a human bioethics commission or an equivalent. Here we go again in the United Kingdom—we do not need these things; we know what to do without having to bother with a bioethics commission. Would that were so. I believe there is potential against what are fragile dikes at present. I will mention just three before I sit down.

The first is the fragile dike of the embryo’s destruction after 14 days—that is absolutely necessary and right, but anyone who lives in this world knows that it is relatively fragile. The second fragile dike is that of forbidding cloning. We badly need international legislation but have not got it. There is no United Nations ban on cloning, nor yet even an EU one. There is huge pressure from people under the illusion that nothing could be better for the world than that they be immortalised for the future. Lastly, and I have mentioned it already and will therefore be brief, there is the refusal to allow the selection of a child’s sex. That, too, is a very fragile dike. If we are to remain in a civilised world—one that fully accepts the huge benefits of science but recognises that there are limits to what people should do in using other people for certain purposes—then these dikes must hold. We need all the help we can get in doing that. I beg to move.

Lord Turnberg
My Lords, the noble Baroness, Lady Williams, as one expects, makes a very eloquent case, but I wish to raise one or two other points which lead, I am afraid, to a different conclusion. This House is endowed with a wide range of Peers who are extremely well informed on matters of ethics and bioethics, and our current debates are testament to that fact. However, it is clear that we do not have a monopoly on this type of information, and it is important that we, and the Government as a whole, have access to carefully considered evidence on bioethical matters derived from a wide variety of shades of opinion and expertise outside this House. The question then is how we can best gain that information and advice. We have the excellent Nuffield Council on Bioethics, which the noble Baroness mentioned. It produces authoritative and valuable reports that have important educational value for the public as well as for us. However, its reports are on very important topics it has chosen itself, and it is not clear that it would take very seriously any specific topics chosen for it by the Government.

On the other hand, noble Lords have access to the remarkably effective Select Committee system. We have had some extremely valuable reports—one or two of which I have had the privilege of being involved with—for example, on the Assisted Dying Bill, which was chaired by the noble and learned Lord, Lord Mackay of Clashfern, and on stem cells. In both cases, we took evidence from very large numbers of people who had knowledge, expertise or views, and from the public. We took it from a very wide area and anyone who wished to express views was heard. We visited centres in the UK and abroad and produced very impressive reports at the end of all that. I believe they were very helpful to noble Lords. It is because we have this effective and available mechanism that I cannot support the idea that we should have yet another body, admirable though it may seem in principle, that would duplicate what we already have. Therefore, I cannot support the amendment.

Lord Patten
My Lords, I am glad to follow the noble Lord, Lord Turnberg, and I recognise the clarity with which he said that he does not feel that the scientific community has a monopoly of wisdom in this area and neither does any other section of the community, whether politicians or whoever. That is right. We certainly agree on that point although, having listened to the rest of his excellent speech, I suspect on nothing else. I have only three points to make, and I shall not elaborate on the points I made in Committee.

First, the House has the opportunity to be ahead of the curve in reflecting the views of the population outside this House and another place. Despite the turmoil of the past few months since August—worries about the economy since the sub-prime crisis and the problems and gyrations in the stock market—it is a reasonable generality to say that, in the past few years, much public concern and discourse has concentrated as much on cultural issues as on political issues, all the more so because a lot of the economic debate of the past half century seems to have been rather laid to rest with the coming together of both the main political parties on public expenditure and their economic plans. That is why we have seen that concentration of the general public on matters such as the environment, climatic change and the overarching issue of care for creation, whether that creation came about by chance, as some might suggest, or by divine intervention, as those on the Bishops’ Bench would suggest.

Right behind that is growing concern about the dignity of the human person, what happens as a result of manipulating humankind and how fast it is occurring, as the noble Baroness, Lady Williams, pointed out. That can be summed up in the tabloid shorthand of “cloning”. The general public are becoming ever more doubtful that the ethical issues surrounding these matters are any longer empty of meaning or that they should be left as the preserve of the specialist—the religious, the scientists or whoever else. I am firmly convinced, and much persuaded by the argument made by the noble Baroness, Lady Williams, that the public need a source of trusted guidance on these issues that rises above the fray of debate. They need a place of resort to which they can refer and to which they can reply that is above the fray of full-on scientific advance at all costs or the satisfaction, for example, of adult needs and wants above all else. I do not think science has anything to be frightened of, and I am rather concerned that scientific opinion seems rather frightened of a national bioethics commission.

17:45:00

My second point is that we need a national human bioethics commission that has representatives of different points of view—the strongly scientific and the strongly concerned with human dignity. I metaphorically tear up the rest of my speech on that because the points have been made by the noble Baroness, Lady Williams.

Thirdly, such a commission would need to be chaired by a woman or a man who was known to be dispassionately above the fray of debate, neither passionately for nor against this, that or the other. He or she would need to be a figure of real substance, deserving of the greatest public respect—the sort of person who we might seek out to oversee, for example, a committee on standards in public life. He or she would need to be generally recognised as having an Olympian and dispassionate view and as being able to deal with the whole range of views, from members who believed in sex selection or full reproductive cloning to the upholders, as they saw it, of the dignity of life. I cannot see what the Government are frightened of in this, particularly not our formidable new Chief Whip, who I am sure is frightened of nothing at all. Why should she be afeared of a national bioethics commission for proper debate that rises above—for the fourth and last time—the fray of scientific or religious dispute?

I hope that she will not take it amiss if, like a little lord echo, I say again what was said by the noble Baroness, Lady Williams: it is a tragedy that so much of the proceedings of the Bill and the characteristically excellent ebb and flow of debate has been marred by the application of a heavy, three-line Whip on what in this place and in another place has traditionally been a matter for individual, conscientious discussion.

Baroness Hollis of Heigham
My Lords, I know that the noble Lord raised—

Lord Patten
My Lords, when I have explained the point that I was making, I shall give way with my usual alacrity. I think that it is a mistake that the Government have chosen to use the juggernaut of a three-line Whip on something that in all my time in another place and in this place has been a matter for individual, conscientious decision. I give way to the noble Baroness.

Baroness Hollis of Heigham
My Lords, I am grateful to the noble Lord for giving way. I hesitated to intervene earlier; I intervened when the noble Baroness, Lady Knight, made a somewhat similar point—I do not wish to misrepresent her in any sense—during a previous stage of the Bill. The noble Lord made the point that whipping was somehow inappropriate and improper and that the outcome would be different if the Bill had not had,

“the juggernaut of a three-line Whip”.

I shall make two points again, because we may be conducting a dialogue of the deaf.

First, this is a government Bill, based on proper parliamentary procedures of pre-legislative scrutiny and taking independent evidence, and the Government have the right, and can expect, to get their legislation through. That has been qualified throughout by the right of any individual to take the issue into his own hands and not take part in a vote. I know, from talking to the Chief Whip, that at least eight or 10 individuals on the Labour Benches have done so, and there was never hesitation about that. An issue such as abortion, which has always been regarded as a private conscience matter, remains ring-fenced for that purpose.

Secondly, I want to pick up the implied point that the results would somehow be different if there were no government Whip—in other words, that those who are being whipped are in some sense voting against their natural inclination, conscience and compassion. Would the noble Lord say to Members of his own side who have been in the government Lobbies that they were exercising conscience while those of us on the government Benches who went in those same Lobbies were not? I am sure that the noble Lord would not wish to suggest for a moment that only one side has the monopoly on compassion or conscience in this argument. I therefore wish that he would not continue to insist that those of us who believe in this Bill and have voted to support the Government are, as a result, under the sway of a juggernaut that informs our decision-making.

Baroness Royall of Blaisdon
My Lords, I was rising to mention the point about order, but I will now sit down.

Lord Patten
My Lords, I have been speaking succinctly, as I am sure the Chief Whip recognises, and I shall respond succinctly to the noble Baroness’s lengthy two-question exposé by saying that she might have fallen foul of putting words into my mouth. At no stage did I suggest that the result would be different; I have no idea whether it would have been, had a three-line Whip been applied or not. However, I know that I think it wrong for a three-line Whip to be applied on such matters of conscientious issue. It is not a satisfactory get-out to say that someone can go to the last Chief Whip—or the present, new and smiling Chief Whip—and say, “Look, I am having conscientious trouble and prefer not to go though the Lobbies tonight”. What happened back in 1990 was much better; we did not have three-line Whips on such issues, as my noble and learned friend Lord Mackay of Clashfern pointed out.

I conclude on this point, as I attempted to do a moment or two ago. The scientific community has nothing at all to fear from this, as it would benefit greatly from having outside advice made under a dispassionate and formidable chairman. The Government have nothing to fear either.

Lord Harries of Pentregarth
My Lords, there is initially something attractive about the idea of a national bioethics committee, and nobody could put its case more powerfully than the noble Baroness, Lady Williams. She has advanced the argument way beyond where it went in Committee and I would like to address some of her points fairly directly.

First, the noble Baroness emphasised that almost every other country in the world has a national bioethics committee. However, she mentioned the United States of America, whose national bioethics committee has become highly politicised; she would also find evidence of such committees in other countries becoming so. She would be the first to agree that that is an undesirable state of affairs.

Secondly, the noble Baroness mentioned the advantage of a national bioethics committee being financed by the state, in contrast to other bodies that might be financed by industry and, therefore, have a vested interest. As I think she knows, the Nuffield Council on Bioethics is financed by two great charitable foundations, the Wellcome Trust and the Nuffield Foundation, and there is no question of the recommendation of the council being in any way skewed by vested commercial interests.

Another aspect of the work of national bioethics committees shows that there is often tension between long-term research or thinking about major issues and the short-term advice that the Government need. Those do not sit easily together. The fact is that long-term work is certainly needed; some reports from the Nuffield council take, perhaps, three years and cannot be provided quickly. If short-term advice is needed by the Government, Parliament is surely the place to look for it—either in one of our Select Committees especially set up for that purpose, or in a standing committee to which recourse can quickly be made. The noble Baroness should agree about that inherent tension. We would have to ask whether such a national bioethics committee would be expected to provide advice in the short term for the Government on particular issues that came up or whether we would want long-term work to be done.

The noble Baroness mentioned the reality of what she called fragile boundaries. It is good to have the 14-day rule and the possibility of reproductive cloning, for example, brought to our attention. Yet would a national bioethics committee really be any greater safeguard to crossing those boundaries than what is already in place? After all, one could imagine a situation in which a national bioethics committee had been highly politicised by a Government who actually wanted to break one of those boundaries—sex selection is an obvious instance. I argue that a national bioethics committee would be no guarantee that some boundaries would not be stepped across.

Finally, the noble Baroness mentioned the advantage of a national bioethics committee being accountable to Parliament. However, we really need to ask to whom it is appropriate that a think tank on bioethics should be accountable. Surely it should be accountable to those whose opinion it respects. The Nuffield council, for example, regards itself as accountable to experts in the field—to scientists, ethicists and any other experts appropriate to thinking about bioethics. In other words, we hope to be judged on the quality of the work. A national bioethics committee, if it was really doing its work, would surely be looking to its work quality and would hope to gain the respect of those best qualified to judge that work. Accountability to Parliament would be neither here nor there as far as that was concerned. Therefore, while I hugely respect what the noble Baroness says, if those four or five issues that I have mentioned are looked at seriously, the advantages of a national bioethics committee are by no means clear.

Baroness Kennedy of The Shaws
My Lords, might I bring some information to this debate? For eight years, I chaired the Human Genetics Commission; I stepped down only last November. It is now chaired by Sir John Sulston, who was my vice-chair. He was the head of the British end of the genome project and you could not meet a more ethical scientist. I remind your Lordships that the commission has on it the very kinds of people whom the noble Baroness, Lady Williams, spoke of; we had medical practitioners, research scientists, genetic counsellors, ethicists, moral philosophers, members from the Consumers’ Association and people suffering from a disability. We had a consultative panel of 100 persons, all of whom had genetic disease or genetic propensities within their families. The whole business of bioethics therefore stretches beyond the issues that we have been debating on this Bill.

Your Lordships should understand the ecology of the advice given to the Government on ethics. What is interesting is that, while the ground is rather divided in this country, it is covered. The HFEA, for example, deals with the issue of gender selection, whereas the Human Genetics Commission advises on issues such as the ethical oversight of the police DNA database. Our commission has been advising the Government on the improper use of genetic information; because of that, a criminal offence was created to prevent people from stealing DNA and misusing it. We produced many of the kinds of papers that the noble Baroness, Lady Williams, spoke of. For example we produced a paper on over-the-counter testing, where there are real issues of ethical implication. We also produced work on genetics and reproductive choice, and the possible overuse of testing without parents having an opportunity to refuse some of the tests on offer. I mentioned that there are ethical issues beyond those being debated here. Bodies exist to advise the Government, after considerable debate and consultation with the public. Indeed, we travel around the country so that our meetings are not confined to London.

18:00:00

I had the experience of going to the United States to visit, at its invitation, the White House committee on bioethics. I went with the then chair of the HFEA, Suzi Leather. It was interesting because together we had basically covered the same ground as that committee. However, the experience was most depressing because, to some extent, that committee could not get beyond the primary debate. In the end, the right-to-life debate was the only debate, which hampered the opportunity to have the kind of debate that we have seen taking place in this House over these past weeks.

Given my background, that whole debate reaches deeply into my heart. I feel that issues about life and those fragile boundaries that the noble Baroness mentioned need to be decided in the public domain, ultimately by elected representatives in Parliament. In visiting and meeting bioethics committees, I was concerned at the way in which almost inevitably those issues became politicised. So let us have our politics out in the open. I am unhappy about subcontracting ethics to a group of ethicists. That forgets the fact that franchising out ethics to a set of eminent personages somehow takes ethics away from the rest of us. If we want to have an ethical society, we must all be our own ethicists.

Watching the bioethics committee in the White House at work was seriously depressing. All groupings want to be represented; you end up with all the major churches and many other groups insisting on representation. I am sure that everyone involved is profoundly moral, but in that situation, ultimately, the debates become privatised. It is important that we try to find better ways of having these debates publicly.

That may mean putting more money into the Human Genetics Commission. When I stepped down, I had my sort of debriefing meeting as a former chair, who had been asked to stay on time after time until it became a bit too long. I said that it might be better to bring in some of the ethical issues that had been with the HFEA. I felt that there was a discomfort in some of those issues being with the HFEA, which is seen by the public as a regulatory body. It is confusing to have the regulatory function and an advisory function on ethics combined. Perhaps one body could do that, in the form of the Human Genetics Commission. However, to start setting up a bioethics commission and to have a contention as to who should be on it and who might be represented on it will inevitably lead to a politicisation that I think we should avoid. I return to my submission to this House, which is that we are all ethicists.

Baroness O'Neill of Bengarve
My Lords, we have an opportunity here, but I hope that we do not take it. Let me try to explain why. I have some interests to declare. I was a founder member of the Nuffield Council on Bioethics and later its chair. I stood down when I started to chair the Nuffield Foundation. So, for more than 15 years, I have been looking at what it really takes to enable a body to achieve independence. I do not say that that has been perfectly achieved, but it is very difficult to achieve, and that is one of the aims spoken about by the noble Baroness, Lady Williams.

We need to think about structures much more carefully than we can today in an amendment to an already complex Bill. Six to eight people is a very small number. Is the whole of human bioethics to be separated from other parts of bioethics? Constantly one finds overlap between human issues and concerns of animal welfare: let us think of xenotransplantation. One continually finds overlaps between human issues and environmental issues and one now finds issues of bioethics that stray into public health. In the broader—perhaps I should say the narrower—academic world where I come from, people now talk about broad bioethics; that is, uniting human, environmental and public health issues.

The remit of such a committee is important. In the mean time, a large range of bodies in this country address particular parts of this remit. Some are publicly funded and some are charitably funded. Between them, they cover the waterfront moderately well. However, there are some things that they cannot do. One of the main things that they cannot do is to have influence, whereas perhaps the US and German bioethics commissions can. Whether having influence is the primary function of bioethics committees, I am unsure. I felt that they should have sought influence when, in the mid-1990s, we published a report on the medical and scientific uses of human tissues and could not get certain departments of state to listen to our worries, which later had unfortunate consequences at Alder Hey and elsewhere and, later still, led to what I still regard as one of the more unfortunate pieces of legislation that Parliament has passed in recent years—perhaps there is some competition.

We need to think much harder before we launch into a national committee. We need to think about what areas of bioethics such a committee should consider. Where are the boundaries? How should it be staffed? Who are the people who should be there? How many would be needed to do a serious job? Could they really then be expected to carry the many additional functions that this amendment would assign to them? If they took on these public engagement and education functions, could they be expected to preserve that form of neutrality that is initially described? As the noble Baroness, Lady Warnock, has said, would it not in the end come back to Parliament—I hope with a free vote—to make decisions on these matters? I believe that it would. Although I am not wholly hostile to this proposal, I am open to being convinced. We need to think far more seriously about what you have to do to secure independence, which I do not think is easy, how one achieves that across time and how one achieves proper connection with the public.

Lord Warner
My Lords, perhaps I may share with the House my experience as a Health Minister who commissioned a paper on whether we should move towards a bioethics commission. I shall not divulge the personal views that were offered to me. However, I received a paper on the proposal, I considered it and I discussed it with the Nuffield Council on Bioethics. It might be worth sharing some of the reasons why I decided that it was not a good idea to proceed with the proposal. I have to acknowledge that if you are a busy Minister and wrestling with some of the difficult issues around ethics in NHS research and development, in the Human Tissue Bill, in genetics et cetera, then there is something extremely attractive in the idea of being able to outsource some of those issues. I do not dismiss that attraction. However, when it comes to grappling with the specific points in taking that forward, you have to confront some rather uncomfortable issues.

If this commission were to be set up, what range and diversity of membership would make it an authoritative body that carries credence with the public, has a wide diversity of opinion and would be authoritative enough to be useful to Governments of all and varied persuasions? The truth is that you need a very large body indeed to produce that kind of authoritative body. The idea that you could do that with between six and eight members, I say to the noble Baroness, just does not stand up to detailed scrutiny. You also have to look, as I did, at the experience of other countries that have gone down this route. I say to the noble Baroness, for whom I have the highest regard, that I thought she was a bit selective about the virtues of some of those other countries. One of the most damning reasons for not proceeding was the experience in the United States. I do not wish to take a tour of the world, but other areas, a little closer to home, also do not bear quite as close scrutiny as the noble Baroness might think.

We therefore have the problem of whether such a body, particularly if it were a small body, could be captured. As the noble Baroness may know, we in the Labour Party are rather expert in entryism; we have quite a lot of experience in that area. There is therefore an issue—dare I say it to some of my colleagues in other parts of the House—about whether faith-based organisations would seek to capture some of these bodies. Uncomfortable stuff though it is, I have to say, based on the experience of other organisations overseas, there is a risk.

Scientists themselves are extremely diverse. A membership of between six and eight would not allow much capacity for a wide range of scientific views, opinions and expertise to be incorporated in such a body. Moreover, the noble Baroness, Lady O’Neill, makes a very important point, as does my noble friend Lady Kennedy of The Shaws: the ground is already quite well covered by quite a lot of bodies. If you are a Minister, you are not short of people offering you advice in these areas. I agree that the advice sometimes conflicts, but nevertheless there is no shortage of people coming to you with expert advice in many of these areas. The Human Genetics Commission has done remarkably good work in this area. The regulators, even though they are regulators, do themselves bring something to bear in these areas because of their experience in dealing with the regulatory issues. The Nuffield Council produces very measured reports after a lot of consultation and research. That is all available, both in the public arena and to Parliament.

One of the issues that I thought was overwhelmingly important was that we did not try to escape from the fact that elected politicians and appointed politicians need to wrestle with these issues. Parliament needs to wrestle with them. Sometimes it is uncomfortable for many elected politicians to wrestle with these issues. They would prefer that things should go away. In a sense, however, that is the important part of a democracy—that we have these issues out in the open and bring them to Parliament. If we are to go down the path of a new body, it should be something that is enshrined in Parliament. It should be a parliamentary debating capability rather than something off-shored to help us out with difficult issues. We need to wrestle with them as parliamentarians.

18:15:00

The Lord Bishop of St Albans
My Lords, I should like to begin this brief speech by reminding the House of some words of Professor Sir Liam Donaldson, which he gave at the pre-legislative scrutiny committee:

“We have had, generally, in this country a deficit in medical ethics, both in the input to some of our decisions over the years and, also, in medical ethicists”.
 

That is a statement we should take seriously. Why is there such a dearth? Because we do not take the teaching of philosophy in schools with the seriousness we should or treat it with the seriousness we should at university level or in medical schools.

The normal response in the context of this Bill when anyone suggests there is a need for a national committee is to say, as has been said today: “We already have such groups—the HFEA ethics and law advisory group, the Nuffield Council on Bioethics, and so on”. None of them, to the best of my knowledge, has any statutory authority. Quite rightly, noble Lords have raised questions of membership should a national body be set up. Can we be absolutely certain that those ethical groups which already exist include, with full voting rights, those who for significant ethical or religious reasons cannot and do not share the presuppositions of other ethicists in those bodies? My information is that that does not happen.

There is not time in a debate of this kind to look at the current stage of ethical thinking in our country. In general, over the past few decades, it seems that it has become increasingly utilitarian and pragmatic. However, within the history of philosophical and ethical thinking in western Europe there have been two significant strands. The first strand is based on the powers of human reason and the capacity for logical thought. I cherish that strand. The second strand is based on the possibility, only the possibility, that the words revelation, epiphany, theophany and disclosure—the kind of words used in the Judaeo-Christian tradition—have a basis in reality, in personal experience and in social experience.

It seems to me that the danger facing ethical thinking in the United Kingdom is that this second strand is treated these days as a lifestyle choice and dismissed as having no more significance than, say, the choice of a gym or a fitness regime. I think that it is slightly unjust to suggest that churches and faith groups might be involved in entryism. What seems to happen most of the time is that, because those of us who have a faith are treated as though we were lifestyle idiots, or the last of the witch doctors, the doors are not opened. Quite the opposite—they are bolted shut. For some reason it is assumed that we are unable to think logically or reasonably and have nothing to contribute. That is very sad.

Suppose for a moment that ethics are not simply about practical and utilitarian behaviour but are also concerned with what is or should be or may be actually true. If that is the case, it seems only fair and just that the significant strand of Judaeo-Christian ethical thinking to which I alluded should be a foundational part of ethical thinking in our country and not treated as though we are somehow bigoted entryists. To exclude that kind of thinking seems discriminatory.

If what I have said is at all accurate, then to ensure that we have in our country a national committee concerned with human bioethics seems a reasonably wise step. The challenges facing those in research and treatment procedures in medicine are massive, and we are all indebted to the scrupulous care which the best medical practitioners and research scientists bring to their work. Having served on the pre-legislative scrutiny committee, I recognised that I was in the presence of such practitioners and such scientists. It was an enormous privilege simply to listen to what they are doing and to try to understand it.

I do not think a national bioethics committee should be seen as something which would hinder research or treatment. Nor should it be seen as an either/or. Can we not still have Select Committees? Can we not still have HFEA ethics and law committees? Can we still not have Nuffield committees? Of course we can. By adding the word “national”, however, would we not assist the ethical thinking that everyone in our country should do so that the treatments and the research which our remarkable scientists and medics are undertaking now and will undertake in the future will be seen as being for the common good and for the well-being of individuals and society? If ethical thinking is sidelined, or treated only by those who have an interest in these things, or treated as a matter simply of pragmatism, then trust in research and treatment will decrease and scepticism will set in, which will be to the detriment of science and our society.

In no sense is the creation of a national human bioethics committee outsourcing ethics. I have learnt a huge amount about ethics by being a Member of this House, and this must and will continue here. This is a question not of either/or, but of both/and, and if we do not set up such a commission, we will have missed a great opportunity.

Lord Walton of Detchant
My Lords, I listened with great care to the outstanding opening speech of the noble Baroness, Lady Williams. It was extremely persuasive because I have enormous sympathy with the objectives which she so clearly enunciated in making the case for a national bioethics commission. Like many other noble Lords, however, I have serious reservations about the potential efficacy of such a body. In the course of my professional life, I have been much involved in ethical discussions in a whole series of different fora: as president of the British Medical Association; and subsequently as a member of the standards and ethics committee of the General Medical Council and later as its president.

It is important to recognise not only that we have bodies such as the Human Genetics Commission, the Nuffield Council on Bioethics and the Genetic Interest Group, but that the professional medical bodies themselves play a major role. The British Medical Association regularly publishes and recently updated a substantial booklet entitled Medical Ethics Today. The General Medical Council continually gives advice to the medical profession about ethical issues that have emerged as a result of recent developments not only in medicine but in medical science. The Royal Society, too, has a role in ethical discussions with scientists in the broader sense. The more recently established Academy of Medical Sciences regularly produces significant reports on ethical issues as they affect various situations in medicine.

In 1992-93, I had the privilege of chairing the ad hoc Select Committee on Medical Ethics, which was established in this House. That body was set up simply to examine in detail two important issues. The first was the sanctity of life and whether it was appropriate to change the law on euthanasia and assisted suicide. The issue arose after a number of cases such as that of Tony Bland, the young man who had been crushed in the Hillsborough stadium disaster, and another case in which a doctor had been accused of murder because he had brought to an end the life of a patient who was in intolerable pain and in the terminal stages of disease. There were 16 members of that Select Committee of your Lordships’ House. We met weekly and took a huge amount of oral and written evidence from individuals and organisations over 15 months. We spent several weekends in consultation and deliberation on the outcome before ultimately producing a unanimous report. That ad hoc Select Committee was established to look at just two major problems, only two of many that could have arisen in the ethical field. Mechanisms are available in this House to establish Select Committees to examine ethical problems. There has been the Select Committee that I just mentioned, as well as the Select Committee established to consider the Assisted Dying for the Terminally Ill Bill introduced by the noble Lord, Lord Joffe, and the pre-legislative scrutiny committee, to which noble Lords have referred today, on the Bill that we are now debating.

The field of medical ethics is enormous. A human bioethics commission simply could not function with six to eight members, even if you trebled that number to cover the representation that would be demanded not only by ethicists and philosophers but by people of various faiths and of different persuasions in science, medicine and the law. It would be an enormous body if it were to fulfil its task fully and properly. The problems that would emerge would make it almost impossible to deal with the short-term issues to which my noble and right reverend friend Lord Harries of Pentregarth referred, because inevitably in matters of complexity in the medical and scientific-ethical field, it takes many weeks and months to be able to assess the evidence and come up with recommendations.

Although I have all possible sympathy with the proposal, this House has the opportunity to create ad hoc Select Committees to consider crucial ethical issues, and an ad hoc Select Committee, rather than a human bioethics commission, is likely to be the right forum.

Lord Alton of Liverpool
My Lords, when the noble Lord, Lord Brennan, first brought this proposal before the House, I was particularly attracted to it. Indeed, I moved the amendment in his absence in Committee and as a result looked in some detail at some of the situations that applied in other jurisdictions. I could see that its applicability here could have quite a lot of merit, but I also see some of the defects. I was therefore very pleased when I saw that the noble Baroness, Lady Williams, had tabled the amendment again for our consideration today.

We have had a very good debate this afternoon, but some of the arguments that have been introduced should be examined more closely. My noble friend Lord Walton of Detchant referred to the importance of our Select Committee system. I agree. The Select Committee that considered the Assisted Dying for the Terminally Ill Bill and was chaired by the noble and learned Lord, Lord Mackay, and the committee that considered medical ethics in the 1990s and was chaired by the noble Lord, Lord Walton, are very good examples of how this House can continue to inform public debate outside Parliament. Noble Lords will be aware, however, that it is not always easy to establish Select Committees and ad hoc committees.

I had the recent experience of putting a proposal before the Liaison Committee. The noble Lord, Lord Steel of Aikwood, who is in his place, and the noble Baroness, Lady Finlay, supported that proposal, which I thought was an eminently reasonable proposal to look at a seriously controversial question. However, that committee could not be established because of all the competition from other issues. We sometimes have to accept the practicalities and accept that the sheer pressure of business, not only on bioethical issues but on the many issues that come across people’s desks, means that it will not always be possible to set up ad hoc committees to consider incredibly important questions. Moreover, Bills do not often come before your Lordships’ House on these issues. We last looked at human fertilisation and embryology in 1990. I might say in parenthesis that I am glad that a joint scrutiny committee examined the Bill before it came here and came out against such issues as sex selection, which the noble Baroness, Lady Williams, identified as one of the fragile questions that we may well return to in due course and which is not included in the Bill. Will another 18 years pass before there is another Bill?

As we have heard again and again throughout the debate, the science is extraordinarily fast moving. The noble Lord, Lord Walton, will be aware of an issue that I raised last week when I quoted Professor Yamanaka from a recent New Scientist article in which he looked not at cloning but at the way in which reproductive cells—gametes—could be produced from one person and a new human literally created. The scientific questions to which that possibility gives rise are not the only ones that we want to consider. Professor Yamanaka himself identified the possibility as dangerous and said that there was no regulatory framework to consider it or deal with it. Surely we would want to ponder the social implications for the family, for the individuals concerned, and for the new entities that will be brought into the world—what position they would have and what condition they would be in. We know that this is not science fiction. As the noble and learned Lord will recall, in 1990, during debates in another place in which I took part, the possibility was raised that the way may be open to developments such as human reproductive cloning. The then Secretary of State said that it was not an admissible issue because that was unlikely ever to happen. Yet within 10 years science had changed the rules and terms of the debate, and in 2001 we introduced a full ban on reproductive cloning.

18:30:00

The noble Baroness, Lady Williams, said that we have always to command wider confidence. I agree entirely. However good the debates may be in your Lordships’ House, however good our Select Committees may be, there is a need to command wider public confidence. Our existing structures are themselves not enough. It was suggested earlier that the Human Fertilisation and Embryology Authority has a difficult role because it is both a regulator and is also at times called upon to take ethical decisions. Alan Doran, the acting chief executive, said as recently as last November at a BioCentre symposium:

“We do not claim to be a national bioethics commission. We are not a body whose primary function is to resolve ethical issues. I do not think the HFEA was set up as an ethics commission”.

The noble Baroness, Lady Kennedy, said that we all need to be our own ethicists. I agree. However, we need to inform ourselves about these very complex questions and we need a sense of where the issues are proceeding. The public on the whole look to us and to the bodies that we establish to give them some kind of lead and to set out the terms of the debate. That was one of the very good things achieved by the committee chaired by the noble and learned Lord on the issue of assisted dying. It did not seek to come to a conclusion. It clearly was divided on the substantive issues but it set out the arguments on both sides and it allowed not only your Lordships’ House but also the public outside to reach a conclusion.

We have been told that the Nuffield Council could perhaps fill this gap, but it only meets four times a year and, as we heard, is accountable only to its founders. Sometimes we have to uncouple commercial interests from ethical issues. Many of the papers produced by Nuffield are some of the most interesting I have ever read. Nevertheless, its word is not the only one to be had on this issue; it is not definitive. That is why the noble Baroness, Lady O’Neill of Bengarve, was right to say that this should not be the end of the argument. It has been an incredibly valuable discussion today. When the noble Baroness, Lady Williams, comes to reply, I know that she will sum up the debate and suggest a way to proceed. Many colleagues in another place are looking at this question very seriously. I hope they will be able to build on some of the very sensible and eminently productive suggestions that have been made in this debate.

Lord Elton
My Lords, the noble Baroness, Lady Kennedy, rightly reminded us that we are all responsible for our own ethics. It is only when we find it difficult to come to a conclusion that we want some superior authority. Many of your Lordships will remember as clearly as I do that one used to be able to look for that guidance from either the churches or the Royal Society. It is only as the churches and to some extent the Royal Society have lost their authority that we have started to look elsewhere. When you are in doubt as to what to do about an important thing, it is always comfortable to be told by somebody who knows more about it than you do what you should do. All of us in this House are accustomed to receiving that service from our Chief Whips and Front Benches, which leads me to mention very briefly the conversation almost between my noble friend Lord Patten and the noble Baroness, Lady Hollis, about the use of the three-line Whip. It is worth pointing out that the function of a three-line Whip is not to get people to vote against their conscience. It is to get people who have no particular persuasion in an argument to vote with their party and thus increase the numbers in favour of an argument in which they have taken no part.

My real purpose in standing up to detain your Lordships is simply to say that this is such an important issue and so closely touches Parliament that both Houses ought to be involved in any final structure that is set up. We ought to hear the opinion of the other place on this. It is pre-eminently a subject on which your Lordships should put up an idea, the other place should elaborate on it, and then, if it seems fit to both Houses, it should be refined in exchanges between the two Houses. However flawed your Lordships may think the noble Baroness’s idea is, and whatever the shortcomings of the amendment at this stage—it is too late now to improve it before it goes elsewhere—I hope your Lordships will send it to the other end of the corridor in order to see what comes back.

Lord Krebs
My Lords, I found much to agree with in the introductory remarks of the noble Baroness, Lady Williams. However, like many others who have spoken, I reach a different conclusion. I do not wish to repeat the very compelling arguments that have been made for the fact that existing bodies to a great degree cover the waterfront. I simply want to expand very briefly on one additional point which has been touched on by both the noble Baroness, Lady Williams, and my noble friend Lord Alton. I refer to the question of public trust and confidence. I speak as someone who had the privilege last year of chairing a working party of the Nuffield Council on Bioethics to produce one of its reports. What struck me when the report was launched last November—a report on the ethics of public health—was the high degree of public confidence as expressed, for example, by the reaction of the media to the work of the Nuffield Council on Bioethics. It is worth reflecting on where public trust and confidence, so essential to any pronouncements in the complex field of human bioethics, come from. There are a number of different strands to public trust and confidence.

First, the Nuffield Council is seen as an independent body. It is not funded by the Government primarily, although it receives some funding from the Medical Research Council. The fact that it is independent of the Government makes it a more trusted body. I speak again from personal experience, having chaired the Food Standards Agency—a government body where it is much harder to persuade the public that one is genuinely independent. Independence is important and I could add parenthetically that the funders—the Nuffield Foundation and the Wellcome Trust—exert absolutely zero pressure on those publishing or producing the reports in terms of the conclusions.

A further strand of the public trust is gained through the Nuffield Council’s working parties. My working party met roughly 10 times a year over two years and those meetings very often engaged a wide range of views. We chose particularly to meet those who had opposing views; for example, on the issue of fluoridation. There were also very wide consultations. The trust comes in part from transparency, openness and inclusiveness.

Why do I mention this? I do so partly to reiterate the point that the waterfront, as has been said, is very well covered by a number of bodies, including the Nuffield Council, but also to make the point that, were a new national bioethics commission to be created as suggested in the amendment, it would have to work very hard over a very long time to earn public trust and confidence. It is not at all clear to me that it would succeed to the extent that existing bodies have succeeded in earning that public trust. That is one of a number of reasons why I feel that the amendment should not be supported.

Baroness Royall of Blaisdon
My Lords, this has been truly an excellent debate. The amendments address an issue in which noble Lords have expressed a very keen interest, both this evening and in Committee. The wide range of sincerely held views was apparent then and remains so. It is clear that the proposal for a national bioethics commission should be considered alongside the alternative possibility of a parliamentary standing committee on bioethics. It remains the Government’s view that establishing a national human bioethics commission would involve a number of very significant practical difficulties and risks.

The practical difficulties include determining the membership of, and interests represented on, such a wide-ranging commission. There is a likelihood that there would be ongoing and disruptive disputes about representation that would undermine its role and authority. Some of that was made clear in the discussion that we had in Committee. I hear what the noble Baroness, Lady Williams, said about membership, but there must also be a danger that pressure for the commission to accommodate a range of various interests and points of view would lead to it being unwieldy; for example, in the consultation arrangements that it would have to have in place.

The noble Baroness, Lady O’Neill, spoke of the problems relating to remit. There must be concern about a commission with such a wide remit having the right balance of expertise and knowledge to be able to deal effectively with ethical issues on specialist subjects.

The Government considered whether to establish a single commission with a remit covering the entirety of bioethics issues as part of the Department of Health’s review of arm’s-length bodies. As my noble friend Lord Warner informed us, this was rejected, after careful consideration, on the basis that the present distributed model of advisory bodies with more specific briefs remained the best option, as it enables specific bioethical issues to be addressed by dedicated groups. Noble Lords have mentioned the Nuffield Council on Bioethics, the Human Genetics Commission, the BMA Medical Ethics Committee and the National Screening Committee. They have the appropriate expertise and sufficient time to devote to complex issues within their field. Parliamentary Select Committees also play an important role in the current system. My noble friend Lord Turnberg referred to the House of Lords Select Committee chaired by the noble and right reverend Lord, Lord Harries, which looked at stem cell research, and the Select Committee chaired by the noble and learned Lord, Lord Mackay, that looked at the Assisted Dying for the Terminally Ill Bill. The noble Lord, Lord Walton, spoke of the ad hoc committee that he chaired on medical ethics.

The current system means that there is a collective responsibility for bioethical debate, which ensures that ethical discussion is embedded in decisions across all committees. This distributed system of bioethical advice works well. It remains our view that a national human bioethics commission would not bring sufficient benefits in comparison. Indeed, it could lead to ethical issues being marginalised and ignored by committees that are responsible for guidance or policy on any number of aspects of medicine or the life sciences. The noble Baroness, Lady Williams, made a very important point about the need for wider education and discussion about bioethics and ethical issues in general, but as parliamentarians we should do much more to connect with the public on these very important issues—and we should give further thought to that.

The noble Baroness is also absolutely right about the huge value of debate on bioethical issues in this Chamber, to us as individuals, to Parliament as a whole and to informing the laws that we make. The Government have made clear their view that there is value in the consideration of bioethical issues in Parliament. We said as much in our response to the committee of both Houses that scrutinised the draft version of this Bill, which recommended the establishment of a parliamentary standing committee on bioethics. That would be the most appropriate forum for an accountable and democratic discussion about bioethics, a discussion that would have the necessary influence, as has been mentioned by several noble Lords. We remain of that view, but the decision as to whether to establish a joint bioethics committee of both Houses is for Parliament itself to consider, taking into account in particular the likely composition of such a committee, its remit, and the way in which its relationship with other parliamentary Select and Joint Committees and current ethical bodies would work.

The noble Baroness and the right reverend Prelate made a very persuasive case—but I am rather persuaded by my noble friend Lord Turnberg, the noble Lord, Lord Walton, and others. The Government see merit in a parliamentary standing committee on bioethics but do not see a national human bioethics commission as the way ahead. Like my noble friend Lady Kennedy, I believe that we should all be ethicists. We have our duty as parliamentarians. I therefore invite the noble Baroness to withdraw her amendment.

18:45:00

Baroness Williams of Crosby
My Lords, I am grateful for a very interesting debate, which in some ways achieves at least one of my objectives—to bring home to this House and another place, as the noble Lord, Lord Elton, rightly suggested, the extraordinary importance of having a mechanism whereby we can follow the advances of science, the issues that are thrown up and the challenges that exist and at the same time try to deal with the issue of retaining public confidence.

Many noble Lords pointed out the difficulties that arise from, for example, the membership of a human bioethics commission. In that respect, the noble Baroness, Lady O’Neill of Engrave was extremely eloquent. On the problems of trying to involve the public more widely, the noble Baroness, Lady Kennedy, used effectively the argument from the Human Genetics Commission, which she headed and which did so much work in getting across to a wider public the concerns that exist. I also know that if there is no mechanism in place, including a mechanism for establishing a parliamentary Joint Committee or committee of this House, what happens under the pressure of work and time is that those things that are not already in the picture and part of a commitment tend to be disregarded. That is why I made a point, which I shall make again, about the excellence but also the rarity of debates in this House on the issue of scientific advance.

There has to be a mechanism—perhaps a parliamentary committee of the kind mentioned by the Minister—that would provide us with the reasons for having regular debates brought to the attention to the House, and beyond it to the attention of the country, on the extraordinary speed of scientific advance. There is no such mechanism at present. There are excellent bodies, which produce very good reports, but they do not oblige the Government to consider the steps that they will take in the light of advances being made. That is the whole point about the fact that the Nuffield Council, and so on, are not in any sense statutory bodies.

I also need to stress a point that I have obviously not stressed enough. We are moving on to a time when it is not national legislation but European and to some extent international legislation that will determine the limits and constraints that are placed on bioethics and not least on the area of human fertilisation and embryology. This is exactly the area in which, as many of our leading scientists know, the pressures are on to weaken the principles laid down by the HFEA and others—pressures that will grow, not decrease. A body such as a bioethics commission or, I agree, a parliamentary Joint Committee, would be able to bring to the Government’s attention the position that it takes on the Council of Ministers of the European Union or, more widely, on international treaty and other organisations. We are on the cusp of moving away from a purely national basis and do not have the proper machinery to deal with that.

With regard to the comments of the noble Lord, Lord Warner, I do not disagree with his remarks about the importance of involving Parliament, but if there is not the machinery to oversee what is happening, nothing adequate comes out at the other end. There is a danger of not establishing such a mechanism.

I do not want to detain the House any longer and propose to withdraw the amendment, but I hope that the attention of another place, as the noble Lord, Lord Elton, said, can be drawn to this debate and that it will be taken into account in another place. While at the moment to press this to a Division would be inappropriate, I feel passionately that to abandon this at this moment because there is not going to be a Division could lead us to pass up a huge and essential opportunity to create a machinery and mechanism of oversight that does not exist at present and without which we shall rue the day that we failed to take this opportunity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 144 not moved.]

Schedule 6 [Amendments relating to parenthood in cases involving assisted reproduction]:

[Amendment No. 145 not moved.]

Lord Jenkin of Roding
moved Amendment No. 146:

146: Schedule 6, page 72, line 12, at end insert—
  “(1) The Authority shall from time to time carry out a review of the law and practice concerning the inclusion in the birth certificates of donor conceived persons the fact of such conception.
 (2) If the Authority, after any such review, and after consulting bodies representing the parents of donor conceived persons, and bodies representing donor conceived persons, recommends that the law and practice should be changed to provide for the inclusion of the fact of donor conception on the birth certificates of donor conceived persons, the Secretary of State may by order implement any such recommendation with such amendments as he shall think fit, and a draft of any such order shall be laid before each House of Parliament and shall only take effect if both Houses approve the draft.”

The noble Lord said: My Lords, we return to donor-conceived children and the kind of issue that might be advocated by the committee that the noble Baroness, Lady Williams of Crosby, would like to see. We have already discussed the desirability of donor-conceived children being told at the earliest possible opportunity of their biological origins. This amendment is concerned with whether the fact of donor conception should appear on the child’s birth certificate.

Telling the child is, of course, widely supported, but there is far less agreement about recording the fact on birth certificates. Indeed, the organisations primarily representing donor-conceived people differ: the International Donor Offspring Alliance takes a quite different view from the Donor Conception Network, a self-help group that primarily represents families. The former group, the IDOA, describes itself as,

“an international alliance of people conceived by ‘donor’ gametes, together with people with a personal or professional interest in the issues associated with the use of third party gametes”.

It is an international body with members not only in this country but in France, Canada, the United States, Australia, New Zealand and Japan. It goes on to describe itself as,

“an organisation which acts as the voice of the donor-conceived as opposed to promoting the interests of would-be donee parents and donors”.

The Donor Conception Network describes itself as a self-help support group and registered charity of more than 1,100 member families throughout the UK. It says:

“We are a parent-led, child-centred organisation, focusing on how best the fact of donor conception can be integrated into the lives of our children”.

It goes on, at length, to describe the range of people whom it represents, including single mothers, lesbian couples, divorced people, separated people, and so on.

These two bodies, as I have indicated, take very different views. The IDOA, the international body, feels strongly that the fact of donor conception should be recorded on the birth certificate. The network takes the opposite view. It warmly welcomes the objective and believes that donor-conceived children should be told, but believes that recording the fact of donor conception on the birth certificate is not the right way to achieve that and, indeed, would not be an effective way of doing so. One has to bear in mind—I suggested this when the noble Baroness, Lady Royall, replied to the previous debate—the fact that while the treatment is recorded by the HFEA at the time, if it is successful and a pregnancy is achieved, that may well be the last that either the authority or the clinic hears about the case. There is no obligation on either the parents or the clinic where the treatment took place to report the birth to the authority. I would be grateful if the noble Baroness could, as she promised, confirm this. Indeed, as the noble Lord, Lord Winston, confirmed, even the clinic may not be told that a successful birth followed IVF treatment.

Why do the two representative bodies take such opposing views? The argument of the IDOA, which represents donor-conceived people, that the genetic and biological parents, as well as social parents, should be recorded, is based on six propositions. First, genetic heritage has existence. It is a fact, and has meaning and value in itself. Secondly, everyone has a moral right to know. While it cannot be universally enforced, the state should not connive in abrogating that right. Thirdly, because the state intervenes in assisted reproduction, it has a duty to give legal protection to that moral right and should not deceive the child or withhold information about its genetic parents. The genetic regulations give the donor-conceived child the right to find a donor’s identity, but this is meaningless if many parents continue to conceal the fact of donor conception. Fourthly, the truth must be put in the hands of the offspring for reasons of avoiding consanguinity or even incest. Fifthly, and this is an important fact, falsifying a birth certificate is illegal, so it is discriminatory if the state connives at concealing the fact of donor conception. Finally, only honest and accurate birth certificates would be consistent with the rest of UK law, the UN Convention on the Rights of the Child and case law under the European Convention on Human Rights.

The Joint Committee found these to be strong and persuasive moral and legal arguments. There are also practical arguments. As I mentioned a moment ago, how are children to find out if they were donor conceived if no one tells them? How can they find out about the medical history of a biological parent? We had the discussion earlier about how that might include grandparents. How can these children be sure of avoiding the risk of consanguinity, or even incest, if they do not have the knowledge that would prompt them to seek assurances from the HFEA? Therefore, the international association argues that that fact must appear on the birth certificate, and the law should be amended to require this.

Let us look at the arguments of the DC network, which conducted a snap survey of network members, all of whom said that they had already told, or would be telling, their children. It showed that the overwhelming majority of respondents were against the birth certification proposal. Many said that they would be prepared to lie to the registrar to protect the privacy of their children or would consider going abroad for a further child in order to avoid appearing on the HFEA register. The network argues:

“The proposal might even be counter-productive. Parents who had originally decided not to tell (and didn’t tell the registrar) might feel it more difficult to change their minds about telling if they had originally committed an offence in failing to inform the registrar”.

They also point out that the law on assisted reproduction, which we have had discussions about in this House, requires absolute confidentiality, on the part of both the clinic and the HFEA. Putting a note or, as was suggested at one point, some sort of code on a baby’s birth certificate would be a complete break with this protection of a family’s privacy and would broadcast to the world how the parents had set about securing the birth of their child.

There are two deeply opposed and strongly held views. I spent most of one Sunday a couple of weeks ago on the telephone to both organisations. Indeed, it was an interesting and revealing day. How are we to find a way through this impasse? What emerged from those discussions is that the opposition to putting the fact on birth certificates stems from a fear that public prejudice may damage the child’s chances in life. To many among the general public, donor conception is seen as a novel, perhaps even bizarre, procedure, interfering with nature. However irrational that may appear, it could rub off on to the child and its chances in life. However, even the network says—I pressed it a bit on this—that attitudes may well change with the passage of time and that, as the public become more familiar with the concept and the practice of donor conception, that prejudice could well subside. There needs to be more public discussion. I read with great interest the article by Libby Purves in the Times a couple of weeks ago, in which she spelt out—in the way that only that competent journalist can do—the argument for putting the fact on the birth certificate.

19:00:00

The view from both bodies suggested to me that perhaps a way forward would be to require the HFEA to keep the position under review. That is precisely what subsection (1) in my amendment suggests. I have gone on to argue that if the HFEA decides to recommend a change in the law and the practice so as to require that the fact of donor conception is recorded on the birth certificate, it should not have to wait for primary legislation; therefore, subsection (2) would give the Secretary of State a power to implement the recommendation by order subject to the affirmative procedure. This would require wide consultation and allow Ministers to amend the recommendation if they thought fit.

I cannot claim that this proposal would completely satisfy both camps—indeed, it would be fair to say that they would both regard it as second best—but I think that they would both see it as a reasonable way forward. From the point of view of the Donor Conception Network it does not require the immediate change in the law that it and most of its members would oppose, while from the point of view of the IDOA it offers a possible way forward to achieving its eventual objective.

There has been much talk about the Joint Committee. It is worth looking at the report. We rehearsed all these issues. In paragraph 276 we recommended that as a matter of urgency the Government should give this further consideration. I look forward to the debate and I beg to move.

Baroness Warnock
My Lords, I put my name to this amendment. I have a strong feeling that the proper thing to do is to put “by donor” on the birth certificate, because that would be honest and it would virtually compel parents to tell their children the truth. I, too, have found that a large number of donor-conceived people are against this view. The amendment offers a way forward and I hope very much that the Government may be inclined to accept it.

I put my faith in the changing attitudes of society. Change will come. People’s attitudes have already changed towards donor conception, which, after all, has been going on in the form of artificial insemination by donor for years and years. However, it was always regarded as something to be kept desperately secret. That was partly because the attitude of doctors was that they were protecting their patients by insisting on secrecy. They are now much more inclined to think of the interests of the child who may be the result of the birth by donation. There is no doubt whatever that it is in the child’s interests to know, or to be able to know eventually, something about their wider family. We may not put quite so much importance on our genealogy as the Icelandic people do, but at least we now recognise that it is an important part of everybody’s individuality and sense of their own personality to know and be able to find out not only who their father was but who was their grandmother, their cousin and so on.

Therefore, if the Government are minded to put the same faith in changing attitudes that I have, this might be a profitable way forward, whereby we could advance to making the birth certificate tell the truth in a way that would not involve primary legislation. I very much support the amendment.

Baroness Knight of Collingtree
My Lords, I, too, support the amendment. I do not think that we have altogether fully realised that we are in very dangerous waters in this Bill. Time and again we have tried to turn a lie into the truth. A far higher authority than even this House has already decreed that you cannot have two women who are parents. You can have two women who are adopted parents or one who is an adopted parent, but we try to pretend that the truth can and should be distorted for people’s feelings. It is a difficult argument to sustain because the truth has to be faced. Of course the truth is sometimes painful and difficult to face, but it is the truth. If we depart from those principles, we are playing a dangerous part and will pass legislation that is not honourable. As my noble friend Lord Jenkin rightly said, it is an offence to put down a lie on an official document such as a birth certificate.

I am also worried about some of the things that this has led to, such as the fact that somebody who has died can and in future must be, according to the Bill, listed as that child’s parent. Everybody knows that you cannot have a baby if you are dead, yet this Bill tries to pretend that you can. That worries me very much. The amendment says that we need to think more carefully about what we are doing; it would enable that to happen, which is why I support it.

Lord Alton of Liverpool
My Lords, I tried to telephone the Public Bill Office to add my name to the amendment, but for some reason my name did not appear on it. I am glad to stand up this evening and in a few words say why I think that this is a good amendment. It does not, as the noble Lord, Lord Jenkin of Roding, indicated, go all the way in either direction. Like my noble friend Lady Warnock, I would like to see the birth certificate clearly marked that a child is donor conceived so that they will truthfully know what their genetic identity is. I am sorry that we have not been able to agree on that, but those in another place may well press further on it. For the time being, I think that the noble Lord, Lord Jenkin, has found a thoughtful way of keeping the door ajar, by ensuring, as he says in the amendment, that the Human Fertilisation and Embryology Authority will,

“from time to time carry out a review of the law”.

The amendment would also allow orders to be laid before Parliament. If it was decided that change was wanted, primary legislation would not be required. I think that that is a sensible way to proceed.

We have had extensive debate about whether we mark certificates with codes, whether we put “donor conceived” or whether we do not put anything at all. Different views have been expressed about that. I simply remind the House that in 1989 the United Nations declared that every child has the right,

“as far as possible to know his or her parents”,

as well as the right not to be,

“deprived of some or all the elements of his or her identity”.

I strongly agree with that. We all need to know about our genealogy. We need to know who we are, not just for the reasons adumbrated by the noble Lord, Lord Jenkin, of consanguinity or incest, but also for those mentioned in our earlier debates about genetics, such as the danger of not knowing about hereditary diseases and of not being able to take early decisions about healthcare if we are unaware of our origins. As my noble friend said, as times move on and people become more used to the kinds of technology that are now so widely used—whether we are in favour of those is neither here nor there—there will be a greater acceptance of the need to know and the duty to tell. This amendment leaves the door ajar to enable us to do that.

Earl Ferrers
My Lords, I agree with my noble friend Lady Knight when she says that we are going into dangerous waters here and that we do not know what the future is or where we are going. I find this whole problem enormously puzzling because in the old days, which were after all only about 10 years ago, the great thing for those who had children by in vitro fertilisation or by donor was that you should not know who the donor was. There was supposed to be a wall of secrecy, and for good reasons. Now we have gone completely full circle. They say they want to know who the donor was because they want to know where their parentage is. That is perfectly true.

If you look at any family, you often hear people say that one child has the expressions of his father. Often, that is so. If you have put on the record that somebody else is the father, that must be a complete untruth. One ought not to permit an untruth to happen. It seems, then, that it is right to put on the birth certificate that the child is the result of a donor. Yet what happens in those areas where you may have primogeniture and funny things like that? Supposing a person—it may have been some wealthy person, not an Earl—wanted some offspring but could not, and had to find a donor to provide his wife with the necessary vehicle to have the child. The child appeared and it was a son. Is that son the son of his father or does it go down that that was a donor, and someone else must come in and inhabit this little place?

Birth certificates must tell the truth. If it is a donor, surely it must say that it is a donor. It cannot say that it is somebody it is not. I hope the noble Lord will give thought to that.

Lord Mackay of Clashfern
My Lords, the Joint Committee that considered the Bill before it was introduced spent a good deal of time listening to quite moving evidence on both sides of this debate. My noble friend Lord Jenkin of Roding took a major part in analysing that evidence for our benefit.

As I said on Amendment No. 142, what the Government are proposing for certain types of parent inevitably means that it will be obvious on the birth certificate that the particular children affected by these provisions were donor-conceived. I do not think the Minister in disposing of my argument contradicted that in any way. That is discrimination between different children in the same basic area of donor conception. I see the difficulty that is faced in this matter. My noble friend’s amendment, supported as it is by the great experience of the noble Baroness, Lady Warnock, is probably the best way forward at this stage because we try to get a degree of consensus between the people directly involved. As my noble friend has shown, the two organisations that represent these people differently take very different views. Consensus between them at this stage seems rather difficult. This is the best way forward. I certainly support this amendment and take account of the fact that donor conception is already being recognised as inevitably the case in a certain rather small minority of entries in the register that are authorised by the Bill.

Baroness Butler-Sloss
My Lords, I share the disquiet that many noble Lords have expressed about the fact that a birth certificate will not show the honest position. I particularly share the concepts in the speech of the noble Baroness, Lady Warnock. Over the next few years there is the possibility of a change of view of those who are particularly opposed to such a course of honesty on the birth certificate at this present moment. This is a sensible amendment, making it possible for a change which would be to the benefit of children if not, in the present view, to the benefit of parents. It would be of advantage if this amendment was accepted by the Government.

19:15:00

Baroness Carnegy of Lour
My Lords, I agree with the noble and learned Baroness, Lady Butler-Sloss, that there is a chance that quite soon opinion will change on this matter, where it has not yet changed. It is extraordinary how quickly children have taken to the knowledge of who their genetic parents were when they have been adopted. About 30 years ago a goddaughter of mine, a German child, told me when she was three that a lot of people are brought by the storks but she came in a train. A year or two later she was explaining to me about what it was to be adopted and how it worked. She knew who her genetic parents were. That has happened quickly; at that time it was quite new for children to talk like that; now it is completely taken for granted. Before long this will happen in the case of donor-conceived children. I too support the amendment. It is a slightly ginger amendment. It is not taking us terribly far but it is keeping the door open. That is perhaps the best we can do.

Baroness Barker
My Lords, noble Lords will remember that in Committee I put forward an amendment which suggested that it might be possible to register the fact that someone was born as the result of donor conception by annotating their birth certificate rather than putting the words “donor-conceived”. I did so having listened to many of the people with whom the noble Lord, Lord Jenkin, has been engaged in deep conversation. I commend the noble Lord for putting the views of those organisations and representing them thoroughly and well.

It is important again to state that those two organisations do not represent all shades of opinion on the matter. There are people who have been adopted and people who have been born as the result of donor conception who are utterly and completely opposed to any move such as this. They feel strongly that singling out one group of children in a public manner—having it registered on a birth certificate is a public manner—is utterly wrong.

That is not to say that they are opposed to a course of honesty, in the words of the noble and learned Baroness, Lady Butler-Sloss. Some of those same people are anxious that children know of their donors. They are the most keen that those children know they are donor-conceived but they believe passionately that that is a matter for them to handle within their families and that they have a duty to handle it within their families. It should not be imposed on them by means of a public document.

The noble Lord, Lord Jenkin, talked about the article by Libby Purves in the Times which I also read. It was a very good article. But there have been other reactions in the press and that is one of the things that worries me about the amendment of the noble Lord, Lord Jenkin. I have a number of concerns about it. It states:

“The Authority shall from time to time carry out a review”.
 

What would trigger that review? Is it inconceivable that public opinion could be swayed dramatically, as it was by the case of the twins that was quoted extensively by the noble Lord, Lord Alton, in Committee, and reported extensively in the press? That might sway public opinion in one direction. Having raised this matter in Committee, I can tell the noble Lord that the Daily Mail—without interviewing me, I have to say—saw fit to run a huge one-page article by heterosexual donor parents, who vociferously made the case in the opposite direction. I am rather concerned that we could have a very unspecific measure. I loved the reference of the noble Baroness, Lady Carnegy of Lour, to a slightly ginger amendment. I ask again what would trigger the review. There is a danger that this matter could be swayed by changes in public opinion based on one or two cases.

I said to the noble Baroness, Lady Warnock, a few weeks ago that we had been through a process whereby all of us had arrived at exactly the same position that she and her committee arrived at back in the 1980s. We have realised that this is an intractably difficult problem to which there is no answer that satisfies both the desire of donor-conceived people to have a right to know and those who say that the matter should be handled within the privacy of the family. But at least we have all been through the arguments this time and we all know why we have arrived at the same position, so perhaps our time has not been misspent.

However, a difficult matter now arises that did not apply in 1990. In 1990 people had long birth certificates and short birth certificates. One of the problems we have now—here I take issue with some of the recent articles of the noble Lord, Lord Alton—is that because of the changes going on in the world, terrorism and people’s need to prove their identity to a greater degree than ever before, long birth certificates are increasingly being demanded by all sorts of authorities so short birth certificates may no longer be appropriate. Therefore, the amendment of the noble Lord, Lord Jenkin, which I accept was drawn up with much thought, may cause problems. We are told that there will be an identity card scheme. Will this information go on ID cards? I do not know but I rather suspect that if it did it would be controversial.

While I sympathise enormously with what the noble Lord, Lord Jenkin, is trying to do, I consider that the amendment does not, as he said, take us a stage further. It simply acknowledges that there is a problem and makes the situation even less clear than it is at present. Finally, given the deep concerns on this matter, and given its potential impact, particularly on the lives of children, I am not happy about it being left to regulation. It should appear in primary legislation. So while I have a great deal of sympathy with the noble Lord, Lord Jenkin, I cannot support the amendment for the reasons I have given.

Baroness Royall of Blaisdon
My Lords, I begin with the very clear statement that the Government fully recognise the importance of donor-conceived children being told about their origins. In the past there was a great deal of secrecy in this area and society generally accepted this culture, as the noble Earl rightly said. Although the same culture of secrecy is no longer the case, this is a sensitive area that involves delving into intimate family relationships.

The noble Lord, Lord Jenkin, eloquently told us of the conflicting views on this issue and the noble Baroness, Lady Barker, expanded further on those differences. I believe that we all agree on the value of donor-conceived children knowing about their origins, but we must weigh this against inappropriate interference from the state and work out the best method for achieving openness. The approach of the Donor Conception Network—an organisation of families of donor-conceived children and donor-conceived adults—is to encourage parents of donor-conceived children to tell them from a young age about their background. The Government recognise the merit in this approach and we are committed to encouraging openness by way of education rather than enforcement. We are funding the Donor Conception Network to produce materials on how to tell, and to run workshops on telling.

The Government have proposed to strengthen the provisions in the Bill with respect to counselling and information provision. In addition to requiring that all patients be given the offer of counselling and provided with relevant information, it also places a requirement on the HFEA to produce guidance on doing so to clinics. I recognise that there is some feeling that indicating in some way on birth certificates that children are donor-conceived will ensure they are better placed to find out about their genetic background. I believe that there would be very serious drawbacks to that approach. First, it is surely better for a person to find out that they are donor conceived in the course of a discussion with his or her family rather than through a birth certificate. Secondly, birth certificates are discoverable documents for anyone, so this information would not be kept private. The point raised by the noble Baroness about identity cards is an interesting one on which to reflect. There are further practical problems such as how, when registering a birth, a registrar could be expected to ask every person for information about the child’s conception without causing distress or offence. There is a further possibility that some parents might want to hide this information and not be honest when registering the birth.

There are also questions about whether the Human Fertilisation and Embryology Authority, as proposed in the amendment, is best placed to carry out a review in this area. Changes to the birth registration laws would involve amending a number of different Acts and I do not believe that a review of the law in this area would be within the remit of the HFEA. It is also not clear that this provision is necessarily appropriate to be implemented by secondary legislation.

Very important issues have been raised during this debate and I believe we are all committed to the same objective—to ensure that donor-conceived children are aware of their conception and origins. Since the Committee stage we have had many discussions to try to resolve this problem but, frankly, we have not done so yet. The noble Lord’s amendment is an interesting way forward but we do not believe that it is the right one at this time for the reasons that I have given.

The Government keep matters concerning gamete and embryo donation under review. We reviewed the position on donors, leading to the removal of donor anonymity in 2005 and we have provisions in this Bill that allow for donor-conceived people, their siblings and their donors, to have access to information. As I mentioned earlier in withdrawing Amendment No. 128, we have accepted the spirit of Amendment No. 129, tabled by the noble Earl, Lord Howe, which would extend the HFEA's duty to give guidance about information provided by clinics to state that information provided by clinics should address the importance of disclosing to any child born from treatment services the circumstances of their conception.

As I said, this is currently an intractable problem but I assure noble Lords that we will continue to keep under review options about informing donor-conceived people about their conception, including continuing dialogue with the Donor Conception Network about the impact of its work. We will gladly involve noble Lords with a specific interest in this in our future discussions. On that basis I hope that the noble Lord will feel able to withdraw the amendment.

19:30:00

Lord Mackay of Clashfern
My Lords, are the Government content with the discrimination that involves the fact of donor conception being registered for some children but not for others who are donor-conceived?

Baroness Royall of Blaisdon
My Lords, the noble and learned Lord is referring to the point he debated earlier with my noble friend. Are the Government content? We are trying to modernise the legislation, one might say, so that heterosexual and homosexual couples are treated in the same way and the same information is on the birth certificates of their children. The noble Lord disagrees with that. I accept that there is a disparity here, and he is seeking to ensure that the truth is on all birth certificates. However, there is a difference in the points discussed earlier about the children of homosexual couples and the children of couples conceived by in vitro fertilisation—couples who have had donors.

Earl Ferrers
My Lords, does the noble Baroness not agree that the point of a birth certificate is that it should record who the parents are—who the mother and father are? When she says that it ought to be the same for heterosexual and single-sex couples, it will remove the right of the person to know who his father or mother is.

Baroness Royall of Blaisdon
My Lords, it is rather a complex issue and we have had that discussion many times, including in Committee. What we feel is important is that children should be informed of their real parenthood, as it were, at an appropriate time. If a child has two parents, both of whom happen to be of the same sex, it is clear that they do not have a mother and a father. Therefore, it is right and proper that their birth certificate should say the donor. It is clear that they do not have a mother and a father in the usual sense, if one may put it like that. I am getting terribly confused here. We firmly believe that while children who have been conceived by in vitro fertilisation have a need to know whenever possible—we hope that those children will be informed at an appropriate age who their parents are for their well-being, their genetic inheritance and all the arguments we have heard this evening—their parents are best placed to inform them. We believe that information is best coming from the parents, not from their birth certificate, because it is a rather private matter.

Baroness Butler-Sloss
My Lords, can I ask the Minister the question raised by the noble and learned Lord, Lord Mackay, which was on the issue of discrimination? I do not think that she answered it.

Baroness Royall of Blaisdon
My Lords, that is correct: I did not answer it. I am sure that the legislation would not be discriminatory, otherwise we would not be bringing it forward. If I am incorrect and we are being discriminatory in law, I will of course inform noble Lords, but I am content that that is not the case.

Baroness Hollis of Heigham
My Lords, first, does my noble friend agree that the reason we are stuck—it is also the precise reason I support an amendment that is actually a weasel amendment—is that there are very diverse and probably irreconcilable views whether birth certificates should reflect the biological or social parentage of children? Secondly, there is the issue of which of those things any child at any point in their life may wish that public document to reflect. Thirdly, there is the right of the child to know and the right of the family to have the privacy to teach their children what their origins are according to their own values and mores, knowing that parents can withhold that information. We have three dilemmas, none of which we can deal with now. The only question now is a practical one—whether it is best to revisit the issue when more consensus has developed through amendment or primary legislation.

Baroness Royall of Blaisdon
My Lords, I am grateful to my noble friend for her assistance but, as I mentioned earlier, we have been around this debate many times, not just in your Lordships’ House but with the very organisations that the noble Lord referred to earlier, trying to find a solution that would be acceptable to everybody concerned. These are very important issues that matter very much to those children about whom everybody is expressing such great concern. In view of the fact that we have had many discussions but not found a solution yet, I ask the noble Lord to withdraw his amendment and trust that we can find an adequate solution in future.

Lord Alton of Liverpool
My Lords, has the noble Baroness given any consideration to a suggestion that I think the noble Lord will have seen from one of the groups outside the House? Set alongside the birth certificate, which should be an historic record telling the absolute biological truth, perhaps there should be a social document. That document could tell the story of the relationships in much the way the noble Baroness, Lady Hollis, mentioned. It is something the Government might want to look at.

Baroness Royall of Blaisdon
My Lords, we have looked at many issues relating to birth certificates but I do not believe that we have looked at a “social certificate”. That might be worth looking at. However, we have looked at various types of birth certificates and the information that might go on them. As I have said, we have discussed that with many of the people concerned, so I am confident that the discussions we have had to date have been comprehensive.

Lord Jenkin of Roding
My Lords, I cannot conceal my disappointment that the Government are not able to accept anything going into the Bill; I had rather gained the impression that the amendment might have been smiled on. It has been warmly supported by a number of noble Lords, many of whom have much longer experience in this field than I do. It is disappointing that we cannot see some way forward in the Bill.

The Minister raised the difficulty of whether the HFEA is the right body to do this. I understand that it is not the body that is responsible for the registration of births, deaths and marriages. There is a tremendous amount in the Bill about the registrar’s duties and what goes on the birth certificate, which will clearly be within the purview of the HFEA. In fact, the HFEA is the body that understands about donor conception. I do not think it is in the least bit unreasonable that we should ask the HFEA to keep the issue under review “from time to time”, as I said in the amendment. The noble Baroness, Lady Barker, asked what would trigger it. The answer is that when there has been time for the debate to move on, the HFEA might say, “It is time for us to have another look at this. We are getting a good deal of pressure from one body or another to say that something must be done”. The argument about the state not conniving in deception has always seemed strong. We are leaving that in the air.

I would like to feel that at some later stage in another place, the Government might be able to find something that could go in the Bill that keeps the door open, as many noble Lords who have spoken in the debate have said, and I am grateful to them all for speaking. The noble Baroness said, “Yes, the Government are going to keep this under review”. I am sorry, but I have been around long enough to realise that without some sort of statutory obligation that does not mean a great deal. I would have liked to have seen something here. I am not sure that this is the right issue on which to divide the House; and anyway it is dinner time and I think we are going to have a break. The House has been very kind and has indicated its views. I am a little upset by the Government’s rather negative attitude but, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Royall of Blaisdon
My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 pm.

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

[The Sitting was suspended from 7.40 to 8.25 pm.]

Baroness Royall of Blaisdon
moved Amendment No. 147:

147: Schedule 6, page 78, line 34, after “of” insert “the formation of”

The noble Baroness said: My Lords, I shall speak also to the other government amendments grouped with Amendment No. 147. They amend Schedule 6 to make minor consequential amendments to other pieces of legislation as a result of provisions in the Bill. The need for these amendments has become apparent only since the introduction of the Bill.

Amendments Nos. 147 and 148 amend paragraph 15 of Schedule 6 to the Bill, which makes consequential amendments to the Legitimacy Act 1976, so as to change the phrase “date of the civil partnership” to “date of the formation of the civil partnership”. This reflects the language used by the Civil Partnership Act 2004.

Amendment No. 154 amends Article 13 of the Family Law Reform (Northern Ireland) Order 1977 to ensure that it is clear that a person will not be excluded as the legal parent of a child following DNA tests if they are a parent by virtue of Clauses 33 to 47 of the Bill.

Amendment No. 155 amends Article 15 of the Adoption (Northern Ireland) Order 1987 to enable a child to be adopted by one parent where they have no other parent by virtue of provisions under the Bill. This mirrors the reference in the order to Section 28 of the 1990 Act.

Amendment No. 156 amends Article 27 of the Child Support (Northern Ireland) Order 1991, which deals with disputes about parentage in the context of child maintenance assessments. This makes the equivalent amendment to the changes made to the Child Support Act 1991.

Amendments Nos. 159 and 160 amend Article 7 of the Children (Northern Ireland) Order 1995 which deals with the acquisition of parental responsibility. The Bill inserts new paragraphs (2A) and (2B) to take account of people registered as parents as a result of amendments made by the Bill to birth registration legislation. This amendment corrects a technical error to ensure that the references to the Registration of Births, Deaths and Marriages (Scotland) Act 1965 are accurate.

Amendment No. 161 amends Article 8(4)(g) of the Children (Northern Ireland) Order 1995, which lists proceedings under Section 30 of the Human Fertilisation and Embryology Act 1990 as “family proceedings” for the purposes of the 1995 order, to take account of the repeal of Section 30 of the 1990 Act and its replacement with Clause 54 of the Bill. This change was omitted in error from the Bill at introduction.

Similarly Amendment No. 162 amends Article 2(3) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998, which lists the provisions which count as “family proceedings” for the purpose of the 1998 order for the same reasons. I beg to move.

On Question, amendment agreed to.

Baroness Royall of Blaisdon
moved Amendments Nos. 148 to 150:

148: Schedule 6, page 79, line 8, after “of” insert “the formation of”

149: Schedule 6, page 83, line 31, leave out from beginning to “subsection” in line 36 and insert “In section 26 of the Child Support Act 1991 (disputes about parentage), in”

150: Schedule 6, page 84, line 18, leave out paragraph 38 and insert—
 “38 (1) Section 51 of the Adoption and Children Act 2002 (adoption by one person) is amended as follows.
 (2) In subsection (4), for paragraph (b) substitute—
 “(b) by virtue of the provisions specified in subsection (5), there is no other parent, or”. (3) After subsection (4) insert—
 “(5) The provisions referred to in subsection (4)(b) are—
 (a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or(b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).””

On Question, amendments agreed to.

[Amendment No. 151 not moved.]

Baroness Royall of Blaisdon
moved Amendment No. 152:

152: Schedule 6, page 89, line 24, leave out paragraph 55 and insert—
 “55 (1) Section 30 of the Adoption and Children (Scotland) Act 2007 (adoption by one person) is amended as follows.
 (2) In subsection (7), for paragraph (c) substitute—
 “(c) by virtue of the provisions specified in subsection (7A), there is no other parent, or”.(3) After subsection (7) insert—
 “(7A) The provisions referred to in subsection (7)(c) are—
 (a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or(b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).””

On Question, amendment agreed to.

[Amendment No. 153 not moved.]

Baroness Royall of Blaisdon
moved Amendments Nos. 154 to 162:

154: Schedule 6, page 94, line 37, at end insert—
 “Family Law Reform (Northern Ireland) Order 1977 (S.I. 1977/1250 (N.I. 17)) 65A In Article 13 of the Family Law Reform (Northern Ireland) Order 1977 (interpretation of Part 3), in the definition of “excluded”, after “1990” insert “and to sections 33 to 47 of the Human Fertilisation and Embryology Act 2008”.”

155: Schedule 6, page 94, line 37, at end insert—
 “Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22))65B (1) Article 15 of the Adoption (Northern Ireland) Order 1987 (adoption by one person) is amended as follows.
 (2) In paragraph (3)(a), for the words from “or, by virtue of” to “other parent” substitute “or, by virtue of the provisions specified in paragraph (3A), there is no other parent”.
 (3) After paragraph (3) insert—
 “(3A) The provisions referred to in paragraph (3)(a) are—
 (a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or(b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).”.”

156: Schedule 6, page 94, line 39, leave out from beginning to first “paragraph” in line 1 on page 95 and insert “In Article 27 of the Child Support (Northern Ireland) Order 1991 (disputes about parentage), in”

157: Schedule 6, page 95, line 1, leave out from “B1” to “substitute”

158: Schedule 6, page 95, line 14, leave out “(1)” and insert “(2)”

159: Schedule 6, page 96, line 13, leave out from beginning to “the” in line 14 and insert “paragraph (a), (b)(i) or (c) of section 18(1) of”

160: Schedule 6, page 96, line 21, leave out “section 18B of” and insert “paragraph (a), (b) or (d) of section 18B(1) of, or sections 18B(3)(a) and 20(1)(a) of,”

161: Schedule 6, page 96, line 27, at end insert—
 “69A In Article 8 of the Children (Northern Ireland) Order 1995 (residence, contact and other orders with respect to children), in paragraph (4), for sub-paragraph (g) substitute—
 “(g) section 54 of the Human Fertilisation and Embryology Act 2008;”.”

162: Schedule 6, page 98, line 10, at end insert—
 “Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6))75 In Article 2 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (interpretation), in paragraph (3), for sub-paragraph (f) substitute—
 “(f) section 54 of the Human Fertilisation and Embryology Act 2008;”.”

On Question, amendments agreed to.

20:30:00

Baroness Masham of Ilton
moved Amendment No. 163:

163: Before Clause 59, insert the following new Clause—
 “Amendment of law relating to late abortion
 (1) In subsection (1) of section 1 of the Abortion Act 1967 (c. 87), paragaph (d) is repealed.
 (2) In subsection (2) of section 5 of that Act, paragraph (a) is repealed.”

The noble Baroness said: My Lords, in moving the amendment, which amends the law on late abortions, I will first explain, in case some of your Lordships are not aware, that a baby who may have a disability can go full term and then be killed and removed from its mother. The legal time for abortion is 24 weeks, but there is no time limit for handicapped babies. This is discrimination of the worst sort.

I personally find discussing abortion very difficult, as it would not happen in an ideal world. However, we are discussing the law of the land, which allows abortion up to 24 weeks—six months—which means that the baby is well developed. How can it be, in this modern world of advanced technology, that babies are allowed to go full term and then be given a lethal injection and killed just because they are still inside the womb and may have a handicap? The amendment would stop this unfair discrimination. It has become known as “the equality amendment”.

So much has been talked about the welfare of the child. I must try to persuade some of your Lordships that the welfare of the living baby within the mother’s womb should also be considered and protected. There have been many advances in medical procedures. An example is a remarkable operation in the USA to correct a baby of 21 weeks with spina bifida while still in the mother’s womb, which shows how wonderful a surgeon’s skill can be. I ask the Minister whether this operation is undertaken in the UK. Is how much a baby can feel before it is born known? So many babies are being aborted who are thought to be severely disabled but turn out not to be; I know that some of your Lordships know of some such individual cases.

In Committee, it was the wish of many of your Lordships that there should be a Select Committee to undertake a comprehensive review of the abortion law, proposed by my noble friends Lady Finlay of Llandaff and Lord Alton of Liverpool, and the noble Lord, Lord Steel. Sadly, the Liaison Committee turned it down.

The provision allowing a baby to go full term and then be killed because of a disability became legal as a result of an amendment to the Human Fertilisation and Embryology Act 1990, amending the 1967 Act. This was before disability discrimination legislation. I want the noble Baroness, Lady Wilkins, to take note of this issue. We should consider how serious and important this legislation is to help and protect people who have a disability. My noble friend Lady Campbell of Surbiton unfortunately cannot be with us today because she has a chest infection. In Committee, she said:

“My view and that of the Royal Association for Disability and Rehabilitation, as press-released last week, is that whatever the time limit set, it should be equal, irrespective of whether the woman gives birth to a disabled child”.—[Official Report, 12/12/07; col. 307.]

Many people, including a law don from Cambridge, have written to me to say how deeply insulting and offensive Section 5(1)(1)(d) is to every single member of the human race who has been born with some physical or mental disability that other people would regard as serious—whatever that may mean—since it proclaims that such people are not worth caring for, should not be treasured and should not be protected from those who wish to kill them off, provided only that the killing is done before they are born. I know some splendid people who were born with spina bifida and cleft pallets. Had this legislation been in force at the time they were in their mother’s womb, they might not be here today. What about such brilliant artists as Beethoven and Toulouse Lautrec? They would not be here. We would not appreciate their wonderful art and music. I beg to move.

Lord Steel of Aikwood
My Lords, I had rather hoped that we might get through the Bill without any amendments to the abortion legislation being tabled, but as the noble Baroness rightly said, our efforts to get a Select Committee to review the 40 year-old Abortion Act did not succeed, and therefore I fully understand and respect her reasons for wishing to table this amendment again. I know how strongly she feels about this. I read in Hansard the speech she made in Committee.

I should say at the beginning that this part of the abortion legislation was by far the most contentious and difficult one to deal with at the time that we were legislating for legal abortion, but I believe that the paragraph of the Abortion Act that the noble Baroness seeks to delete is more important now than it was in 1967, simply because medical advances and the customary screening of pregnant women has enabled severe abnormality to be detected at a much earlier stage than was the case 40 years ago. Although the number of abortions carried out under this paragraph of the Abortion Act is a tiny proportion of the total, it is none the less a serious matter.

Indeed, when we were debating these issues in both Houses all that time ago, we were very concerned that we did not slip onto the slippery slope of eugenics in this matter. I am well aware that in some societies abortion is used as a method of selecting the sex of children, which I find completely abhorrent. Nevertheless, I believe that the noble Baroness is profoundly wrong when she suggests, as she did in Committee, that in some way the existence of this legislation is an offence to the dignity of disabled people. In the past five years, one of my relatives and a friend of mine have given birth to severely disabled children. I know that when the initial pain of that discovery was over, the entire family and everybody who came in contact with them felt delighted at every stage of progress that those children made.

Sadly, one of them, my relative, did not survive. However, she lives on not just in the memory of those who knew her, but because we set up a fund to raise money to help medical research into the heart defect from which she suffered. Therefore, her contribution to society, in her very short life, was substantial. As for my friend’s child, he is making as much progress as he can at his school, and we delight in that. There is no question of treating these people as, in any way, second-class citizens.

The Beethoven argument, which I have heard so often, is fundamentally false because you cannot have abortion retrospectively. Nobody ever said, either to Beethoven or to any of these children I have referred to, “Oh, I wish you had never been born”. That is an absurd argument and not one that should be sustained.

There have been challenges since this law came into being. There was one famous legal case taken in the courts, allegedly, because a foetus had been aborted with only a hare lip. The case was thrown out by the courts—rightly so, because as the medical Members of the House may tell us, a hare lip is often an indication of something far more serious. It is something that they have to judge in each case.

We have to remind ourselves that all the abortion law does is to lay down the boundary of the criminal law. It is not a law that says what doctors or parents should do. It simply says that, in certain circumstances outlined in the law, if two doctors, “in good faith”—the words are in the Act—together with the mother, decide that it is in the best interest for the foetus to be aborted, they can do that without criminal prosecution. It does not say how and when they should do that. That is an important matter.

It is also the case—but again, the medical Members of the House will confirm this—that, very often, natural abortion, or as we more euphemistically call it, miscarriage, occurs when a foetus is abnormal and therefore the body rejects it. All that medical science is doing now, with screening, is assisting that process when nature has failed. Therefore, it is the case that the general clause dealt with in subsection (1) of the amendment tabled by the noble Baroness should be sustained.

As to subsection (2) of her amendment, to which she spoke earlier, that was a change made in both Houses in 1990, as she rightly said. At that time, it was agreed, and I agreed with it, to reduce the age of assumption of viability, in the light of medical knowledge, from 28 weeks—which had existed, not from the Abortion Act 1967, but from the Infant Life (Preservation) Act 1929—to 24 weeks. That was agreed and it went through both Houses without demur. However, as a consequence, the section, to which the noble Baroness has drawn attention, was added, to say that, in the case of severely disabled foetuses, the 24-week limit would not apply.

I must admit that I had some hesitation about that section. It meant that, as the noble Baroness said, an abortion could be carried out right up to the point of birth, which was contrary to the Infant Life Preservation Act, never mind the Abortion Act itself. However, my mind was settled on that issue by a conversation, which I will retell to the House, that I had with a distinguished professor of obstetrics at one of our leading universities.

He told me about two cases referred to him, after the 24-week limit had passed, of mothers who were carrying foetuses which had no prospect of life. In the one case, after immense consultation and proper counselling, it was agreed that the pregnancy should be terminated and the mother helped to start a new and healthy pregnancy, and that is what happened. In the other case, identical to the previous one, the mother, for reasons known to herself, which may have been religious or because of other conditions in the family—I do not know the circumstances—decided that they would rather have the baby born. The baby having been born dead, they took it in the family car from the hospital to their house to see the room that had been prepared for it, and then brought the dead baby back to the hospital.

The professor made three points. First, tragically, the outcome was the same in both cases. He could do nothing about it. Secondly, both parents had been the subject of proper counselling—a subject which we come back to time and again when discussing abortion. Proper counselling is very important and in this case they had expert counselling. The third thing they had in common was that the parents were ultimately able to decide on their preference. That is terribly important. If the noble Baroness’s amendment were carried, that choice would be taken away and we in Parliament would be denying people a free choice on what to do in these difficult and tragic circumstances.

20:45:00

Baroness Knight of Collingtree
My Lords, the noble Lord, Lord Steel, will understand why I have a sense of déjà vu this evening—our history goes back a very long time in debating this matter. I listened to what he said with great care, but he was not really denying what my noble friend Lady Masham said. She said that a special change was made to deal with the question of aborting babies later because the child was handicapped. If that is not acting against the bearing and having of a disabled child, I find it really difficult to see quite what is. I have always felt that it is very difficult—we must understand how difficult—to have a badly handicapped child. It is all very well for some of us who have never had that burden to say that other people should take it on. I completely understand that, but I believe that if society is civilised and humane then it ought to do far more to help women in that situation.

Many years ago, when I was a local councillor, I remember calling to see a lady who had a badly disabled child—she called him that, although he was 38 years old. What worried her above everything else was who would look after Tommy when she was gone. I thought that quite dreadful and that there ought to have been some way of helping her when he was young, because she said that she was never able to leave him alone. I do not think she had had a holiday after her husband died. There was no one else to look after the boy. She had had a really dreadful life, but that is no reason not to have the child at all.

Society ought to help a great deal more. However, as the noble Lord, Lord Steel, acknowledged, a handicapped person is often a great blessing. A handicapped baby can be that, and we can learn such a lot from its courage and smiles. It worries me greatly that we are at the stage of seeming to go further and further down the dateline. In the past few days, I was horrified to hear this matter being discussed on the radio by two professors who were trying to decide whether an unborn child felt pain. I can remember seeing pictures of unborn children being jabbed with a needle while in the womb, and their reaction seemed perfectly visible. It was a definite reaction to receiving a painful jab. The professors could not agree—but which two professors can agree, except the noble Lords, Lord Patel and Lord Winston? In the main, however, experts disagree. The professors said, “If there is any doubt about the unborn child feeling pain, we can always inject it with something that will stop it feeling pain while it is aborted”. That is an extraordinary way of looking at the issue.

We should value our disabled friends greatly and in no way seem to act against them by permitting a later abortion for them than for others. It worries me that we increasingly accept that abortion is necessary and that it will happen. A friend of mine was told by her doctors that she should think seriously about having an abortion because her child was handicapped. She refused to do so and the child was slightly handicapped in one foot, which the doctors were able to rectify over about four years. This matter worries me and I have pleasure in supporting my noble friend.

Baroness Gould of Potternewton
My Lords, I am sorry to have to do it, but I rise again to oppose this amendment. I do so as someone who has been firmly committed all her life to equality. Although one respects the noble Baroness’s deeply held beliefs on this matter, I think that she is wrong. It is essential that we listen to the long-held views of the medical community and to the very opposing views of those within the disabled community, such as the National Disabled Students Union, which is deeply opposed to this amendment. In 2006, less than 1 per cent of abortions carried out in England and Wales took place on these grounds. If this amendment is passed, should women still be offered antenatal screening and diagnostic testing at all? Under the law, they would not be able to end the pregnancy. So it would appear to be a futile exercise and a retrograde step.

The issues around detection of abnormalities and the timing of antenatal screenings are complex. It is unfortunate that it remains impossible to diagnose many foetal abnormalities before the mid-pregnancy anomaly scan, which is usually at 21 or 22 weeks’ gestation. Even then some foetal malformations are not apparent but visualise beyond 24 weeks if there is a need for a further scan. Identification of a problem at this scan would almost certainly mean that further tests are required. Those tests take time. The law currently allows time for counselling and time for the women to be able to choose—to make a choice. These are desperate cases. There needs to be time for the woman to have the counselling and to make the choice where an abnormality is discovered very late. Putting those few women under pressure to make a painful decision without having the time they may need to do so is unthinkable and inhumane.

Medical professionals also support the current situation whereby the Act does not list how serious handicap should be defined. I believe that flexibility is essential. The Government supported this flexible approach in their response to the recent report on abortion by the Science and Technology Committee in the other place. In their response, the Government stated that,

“an exhaustive list of abnormalities is neither feasible nor desirable on the face of the Act”.

I welcome that defence of the current law.

In Committee, and again today, the noble Baroness, Lady Masham, has mentioned abortions for minor disabilities, saying that these could be rectifiable. But we cannot ignore the fact that these conditions can sometimes be indicators of an underlying genetic syndrome or serious defect, as the noble Lord, Lord Steel, mentioned.

This amendment is also opposed by the Genetic Interest Group, a national alliance of patients’ organisations which supports children, families and individuals affected by genetic disorders. Passing this amendment would particularly affect the reproductive choices of those parents who know they are carriers of a genetic disorder and risk having a baby with the condition. It has also been suggested that women are coerced into an abortion by doctors who are prejudiced against people with disabilities. The evidence suggests the reverse. Clinicians are reluctant to be directive and these difficult and complex decisions are taken in partnership between the parents and the professionals providing the care.

The noble Lord, Lord Low, who unfortunately cannot be in the House today due to a longstanding commitment, has asked me to say that he is in full agreement with the points I have made. In particular, he asked me to say that there is a range of views on this question to be found among disabled people and that in comparing foetuses which have the potential to be a disabled person with non-disabled persons, the noble Baroness, Lady Masham, is not comparing like with like. Arguments based on equality are just not appropriate.

Finally, no woman ever makes the decision to have an abortion lightly. It is a particularly heartbreaking dilemma in cases where the pregnancy has been very much wanted and a foetal abnormality is diagnosed. Those who make that painful choice to end a pregnancy do so after much careful consideration, advice and counselling of what the diagnosis may mean for their baby, the child’s quality of life and what it might mean for themselves and their family’s future. They should be supported to make the reproductive choice which is best for them rather than facing condemnation. I ask the House not to support this amendment.

Lord Alton of Liverpool
My Lords, I follow the noble Baroness, Lady Gould; she knows, as I said in Committee, that I have a great deal of respect for her on a whole range of issues on which we often co-operate. On this issue, however, we are in disagreement. I fully support the amendment that my noble friend Lady Masham has laid before the House tonight. I set out my arguments for supporting the amendment at some length on 12 December, the last day of Committee, at col. 308. The procedures of the House are such that you should not repeat all the arguments that you made in Committee. I shall therefore not trespass too long on your Lordships’ indulgence this evening.

I should like to speak about one or two of the questions that have been raised tonight and raise one other issue with the Minister. At the heart of our debate—the noble Baroness has just mentioned it again—is this issue of whether choice should be a trump. I have always been troubled by that argument—the argument about personal autonomy being more important than other considerations. I guess that this is where the issues divide us. In 1906, in his book Orthodoxy, GK Chesterton said that,

“to admire mere choice is to refuse to choose”.

Sometimes we have to look beyond the issue of choice at the deeper questions. For me the question is, is this life itself? If it is life, do we have obligations towards it, and does the state not have a duty to protect?

As the noble Lord, Lord Steel, said earlier, a very small number of abortions take place on the grounds of disability. Of the 7 million abortions that have occurred since the noble Baroness, Lady Knight, and the noble Lord, Lord Steel, first debated this issue in 1967, 98 per cent have been done under the social clause and do not have anything to do with the hard cases. As my noble friend made clear tonight, that is not a reason why we should ignore these other questions or say that they are less important, especially as this is a discrete question that has arisen, as the noble Lord said, because of the change that was made in the 1990 Act and which did not occur before. That is when we decided to allow abortion up to birth specifically on the grounds of disability.

I should like to ask the Minister how this corresponds with human rights legislation and what advice we have taken on compatibility as far as issues of discrimination and equality are concerned. That, after all, is at the heart of the argument that my noble friend has laid before the House. I should also like to ask him about the definition of the word “serious”. It is a question that I raised in Committee when I referred to Section 1(1)(d) of the Abortion Act, which allows abortion up to birth if,

“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.

The noble Lord, Lord Steel, gave examples I think of anencephaly and hydrocephaly, and of life-threatening disorders where often the child cannot be born alive anyway. There would probably be no disagreement between us on that. That was never meant to fall within the scope even of this amendment, which I think was first moved in 1990.

21:00:00

We need to concentrate on the definition of “serious”. The Reverend Joanna Jepson, as many of your Lordships will know, tested this issue when she went to court over the issue of cleft palates. Since then, there have been other cases not only about cleft palates but about club feet, hare-lips and webbed fingers. Although I accept what the noble Lord, Lord Steel, said—the noble Lord, Lord Turnberg, also made this point—that it may indicate other more serious conditions, I would like the Minister to tell us when he replies why we do not require the precise reasons to be stipulated on the forms that authorise these very late abortions and how they conform to this word “serious”. Cleft palates, club feet, hare-lips or webbed fingers are rectifiable disabilities, and I do not think that anyone in your Lordships’ House would argue that they should be a ground for abortion up to and even during birth.

My noble friend also referred to spina bifida. I drew to her attention last week, as I have to one or two other noble Lords who are in the House this evening, an extraordinary photograph that I was recently sent of a baby called Samuel Alexander Armas, who was at 21 weeks’ gestation when an extraordinary surgeon called Joseph Bruner, who works at the Vanderbilt University Medical Center in Nashville, removed the baby from the womb, operated on the spina bifida and returned the baby to the womb, successfully dealing with the spina bifida. There is an extraordinary subsequent photograph of this baby, who is now three or four years old, holding a sibling who had the same condition and who was also operated on in utero.

It might be valuable for us to discuss in some detail at some other stage what we are doing in this country to develop operations in utero to correct rectifiable disabilities. The scar tissue on the spine of that boy healed completely, and although he has some ongoing conditions, his life and that of his sibling were saved. This combines good ethics with good medicine, which should commend itself to your Lordships. I know it will commend itself to the noble Lord, Lord Darzi, who is one of the foremost surgeons in this country. I hope that, when he comes to reply, he will not only tell us about the definition of this word “serious” but say something about what can be done and is being done in utero in this country now, and about how widely the sorts of operations to which I have just referred are being practised.

The noble Baroness, Lady Knight of Collingtree—my noble friend in this context, as she always is—mentioned pain. Only this evening, Professor Sunny Anand, one of the world’s foremost experts on foetal pain, addressed a meeting elsewhere in the Palace—a meeting that was reported in the newspaper this morning. He was accompanied by someone who is not from my side of the argument but who the noble Lord, Lord Steel,  will know—Professor Stuart Campbell, a leading gynaecologist from Glasgow, who took the extraordinary 4-D footage of the baby walking in the womb. They talked at the meeting about pain. Professor Sunny Anand said that he believes a baby can feel pain before 24 weeks’ gestation and that this should affect our attitudes towards particularly late abortions. That in turn puts the other side of the argument put by the noble Lord, Lord Steel of Aikwood, earlier in our proceedings this evening when he said quite rightly that technology, medicine and our knowledge of what is happening to the child in the womb have advanced through foetal scanning and the rest. All of us who have seen our own babies on a foetal scan know the magic of that moment. I remember seeing my son, then at nine weeks’ gestation, on a foetal scan when his twin had miscarried—naturally, as the noble Lord, Lord Steel, said earlier. My wife bled profusely during the pregnancy that followed, and there was great uncertainty about the outcome. I am happy to say that the outcome was fine and that that son has done well and is about to do his A-levels next year. The point that the noble Baroness, Lady Masham, was making earlier is that we can never be sure when we are told by these tests and scans, or from the things that happen to us in life, what the outcomes will be. We should therefore be very cautious about trying to predetermine everything.

While I was a Member of Parliament in Liverpool a constituent came to see me because she had been told that her baby would be seriously disabled. She was a single-parent mother and had been told that she should have an abortion in order to be rid of a problem that she would otherwise encounter. She was told that she would have huge difficulty in bringing up the child. But when the child was born, there was nothing wrong with it. She had been told that he would be a dwarf and there would be other ailments—a whole range of disabilities. Subsequently, she became pregnant again. When she went to the hospital for tests on the second occasion she was told, “Because you had a disabled baby the first time”—she had not, but that was on her medical records—“you must have the amniocentesis test. If you don’t, it will be irresponsible”. Amniocentesis carries a 2 to 3 per cent risk of spontaneous abortion. The tests can carry consequences as well and they do not necessarily tell us the outcomes.

I am glad that my noble friend has had the courage to bring this amendment before us and this debate to your Lordships’ House. The noble Lord, Lord Steel, my noble friend Lady Finlay and I suggested to the Liaison Committee that there should be a full Select Committee not just to look at this question but to conduct a comprehensive review, as the noble Lord said, after 40 years of this legislation being on the statute book. He and I totally agree on that. Rather than discussing this within the context of the Human Fertilisation and Embryology Bill, that would have been, and still could be, the best way of proceeding. I hope that, when the Bill goes to another place, the Members there will accept that suggestion, in the spirit in which it was offered, and perhaps allow us to look again at all these questions far more comprehensively.

Lord Clarke of Hampstead
My Lords, I shall be brief in speaking in support of the amendment tabled by the noble Baroness, Lady Masham. I congratulate her on the comprehensive way in which she moved it, as is her usual style. Nobody in this House who heard her will be in any doubt as to what this issue is about.

On 21 November, on the second day of Second Reading, I outlined my concerns that Members in the other place might make attempts to lengthen the period up to which abortions could take place. I mentioned many other concerns and it is too late in the evening to go through them all again, but I still have this great concern that somebody will try hard to undo some of the good work that has been done. On the question of pain, I will just repeat what I said at Second Reading:

“We know that from 16 weeks babies will recoil from a noxious stimulus in the womb and that premature babies born earlier than 24 weeks will, if stabbed in the heel with a needle, pull their foot away and cry. It seems reasonable to assume that they are feeling pain”.—[Official Report, 21/11/07; col. 853.]
 

During the passage of the Bill, much time has quite properly been devoted to the creation of life. For a lay person such as me, it has been an education to learn of the efforts of highly skilled and professional people who help women to bear children. As has been said, we are fortunate in this House to have such people as Members. My support for this amendment is strengthened by the moving speech given by the noble Baroness, Lady Masham, at Second Reading. Sometimes when you leave this place, you get half way home and you think, “I have forgotten all that”. But the words of the noble Baroness, Lady Masham, have stayed with me. She said:

“A paediatric plastic surgeon told me that he needed about 29 babies with hare lip defects each year to keep his hand in practice so that he was expert at his job. He is not getting them as he used to because so many are being aborted. When I related this to my secretary, who had been born with such a defect which had been corrected, she was horrified”.—[Official Report, 19/11/07; col. 726.]
 

She went on to say that people were arguing that people with disabilities should not be brought into the world. As I say, it is late and I should like to quote even more. But that was a case of a lady whose problems were corrected in later life but who could have been terminated if somebody had not allowed her to go to term. We should be championing those people who perform such operations and give people a life. My support for the amendment is strengthened by the words of the noble Baroness.

I prepared an awful lot to say, but I will not go on. As the six hours that I have been sitting here tediously went by, when those areas in which I was not involved were debated, I listened very carefully—as I say, it was an education. But what a stark contrast between that and what we have heard from the noble Baroness and what we have heard about the efforts to assist in the creation of human life, as this Bill has made its way through its various stages. If the noble Baroness tests the opinion of the House, as I hope she will, I shall follow her into the Lobby.

Baroness Hollis of Heigham
My Lords, I hope that your Lordships will not follow the noble Baroness into the Lobby. We have heard a lot tonight about the rights of the unborn foetus. I am not convinced that a foetus as such carries rights; we have responsibilities to it, but I think that humans grow into rights. However, the noble Baroness, Lady Warnock, may wish to take me on about that.

What we have not heard about is the position of the woman. I ask your Lordships just for a moment to put yourselves into the position of a woman who has had tests and has learnt at 25 weeks that the foetus that she is carrying—and it may have been a much wanted child—has a severe disability or abnormality. I agree with the noble Lord, Lord Alton, that we are talking about severe abnormalities. On reflection, after discussing the situation with a partner and possibly after counselling, the woman decides that the right thing for her and possibly for other members of her family is to seek an abortion. If this amendment were passed, she would not be able to get that abortion. What would we be saying to that woman? We would be saying that, although she does not wish to continue with the pregnancy, we will require her to carry that foetus, even though she knows that it is severely disabled, for another three months with growing discomfort, going through the pain and to some degree the risk of childbirth, and to have at the end of it a child that she had sought not to have, with all the stress and the potential for postnatal depression and the like that might follow.

That woman has rights, too. The only person who can make an informed choice, within the framework of the law—although some women will make one choice and others a different choice—is the mother of that foetus and potential child. We would be unwise to seek to impose on that potential mother that she bring that foetus to full term against her wishes and against her own health—and certainly against her own judgment—because we think that it would be good for her and for that foetus to continue despite its severe abnormality. I do not think that that is a decent and proper way in which to go. Other people may have a different view. Everyone is entitled absolutely to have a different view on this, and everyone in that situation would make a different call and a different judgment. But the person to make that call and that judgment is the potential mother and no one else.

Lord Davies of Coity
My Lords, as I understand the amendment, it is limited to abortion in respect of a child with a severe disability. This is not a debate about the general concept of abortion. I support the noble Baronesses, Lady Hollis and Lady Gould, and I shall be going into the Lobby in opposition to this amendment. I shall describe a circumstance with which many of your Lordships may identify. I have seen a situation where a child was born, before the technology that we have today, severely mentally and physically handicapped. The parents have, for about 10 or 12 years, tried to identify with that child and bring him up, making a total sacrifice in the knowledge that the child does not really recognise them after all those years. In the end, the parents are so worn out that the child goes into care, still not identifying his or her own parents and not even knowing who they are. I do not want to see any parent—particularly a woman—being subjected to that kind of sacrifice. Therefore, I will support the Government or, at least, the opposition to this amendment. The woman has a right to choose.

21:15:00

Earl Ferrers
My Lords, I would like to agree with the noble Baroness, Lady Hollis of Heigham, but I am afraid that I do not. Anyone who ventures into the field of abortion—I have never particularly done so before—is treading on very tender ground. Since the days when the noble Lord, Lord Steel, introduced his Bill on abortion, which was deeply controversial, there have been lots of abortions, to such an extent that some people almost regard abortion as a choice. That was the word of the noble Baroness, Lady Gould of Potternewton: we have a choice. These abortions have gone on and, as far as I understand it, the amendment tabled by the noble Baroness, Lady Masham, says that you cannot have an abortion after 25 weeks. At the moment you can have an abortion up to the point when the child is born.

When does that child become a human being? Is it the point at which it comes into the world, because that is the moment when it becomes, as it were, a free human being? It is the same child that was in the womb the day before. Is it really justifiable to say that that child is wrong and, therefore, we ought to abort it? We all want to have perfect children, perfect lives and perfect health, but it does not work out that way.

I am apprehensive, and always have been, about the wisdom of abortions at an early stage, because you are destroying some form of life. I am deeply apprehensive about it at a later stage, because it is very difficult to tell when that child is a foetus and when it becomes a human being with a soul. Aborting children—and I have no experience of this other than seeing pictures—can be pretty grisly. Destroying human beings, even if they are in the womb, is a terrible task to take on. I hope that the amendment will go through, because I do not think it right that human beings should decide at one moment that this child, who is a human being, should not be born.

Baroness Meacher
My Lords, I had no plan to speak in this debate; indeed, I promised our colleagues on the Door that I would not. We joked about it, so I must offer my apologies. I agree absolutely with everything that the noble Baroness, Lady Hollis, said, but I want to speak about the rights of the child. The Mental Capacity Act refers to the child having capacity; if they do not have capacity, it is important for the professionals to consider their best interests. If we could hold to that, we would be doing pretty well. I happen to know two tiny children who were born at 25 weeks with very severe cerebral palsy. They were natural births. Those two children cannot breathe naturally; they have to be helped to breathe. They will never talk. They lie on their backs and can do nothing. My belief is that there are children, born at those very early ages, who are not viable people. It would be in their best interests to have been aborted. There rests my case. We need to consider the best interests of these babies.

Baroness Williams of Crosby
My Lords, I shall be as brief as was the noble Baroness, Lady Meacher. I believe quite simply that it is right and proper that the same laws should apply to people who are disabled as to those who are not. Therefore, if a foetus is viable, which it will be after the age of 25 or 26 weeks, it should be permitted to live. It will be a matter of nature whether or not it lives.

We have heard about a great many grim cases. I can equally come up with a case of a very close friend of mine who had a baby with very serious Down’s syndrome, but who has given her more pleasure than anything else in her life. The child has been an immense treasure, and she has no other children. We can all argue these cases for good or for evil. My point is a very simple one. We have a society where once people are born we increasingly go to extraordinary lengths to look after them if they are disabled. All around our country, and quite rightly so, we have ramps and lifts and all kinds of additional things that make it possible for a heavily disabled young person or child to live and enjoy a decent quality of life.

Many of us will be disabled, not because we were born with a genetic disability but because we have suffered an accident that has heavily disabled us. We have to be accepted in society. Society has to make changes to ensure our lives are worth living. One of the things that really frightens me is that, if we pick out the potentially disabled at the age of 25 or 26 weeks, we will sooner or later develop an attitude towards the severely disabled who have been disabled since birth. We ought to be clear on the logic of this. If we are to treat disabled people in all possible ways as potentially having exactly the same quality of life as we do and doing everything we can to make that conceivable, then we have to carry that through always, from when one becomes viable to when one reaches the natural end of one’s life.

Baroness Tonge
My Lords, I congratulate the noble Baroness, Lady Masham, on having the courage to bring the amendment to the House. In many ways we have had a very moving debate again this evening. We had one in Committee.

I would like to add one or two things to the debate. I will try not to be very long. The noble Lord, Lord Steel, pointed out that we are talking about less than 1 per cent, and in the case of very disabled babies much less than 1 per cent, of the total abortions done in this country.

My noble friend Lady Williams said that we should have equality in the timing of when abortion is permitted. The very reason we say after 24 weeks for severely disabled foetuses is because the tests cannot be done to make sure that the baby has a certain condition until 24 weeks, and 26 weeks in some cases. Therefore, that means a woman carrying a handicapped baby has missed the time limit that is put on normal abortions of 24 weeks.

I said in Committee that we were not talking here about disabled human beings, but about some grossly abnormal human beings; many of those whom I have seen bear little resemblance to human beings. In Committee I mentioned the child with anencephaly that I delivered. It had no brain and a grotesque appearance. I spent some time as a medical student in a hospital that was meant for very severely mentally and physically disabled children. It was the most terrible two weeks I have ever spent in the whole of my career, seeing those poor creatures, some of them a little less affected than the others, and maybe trying to feed someone who could just lie in a cot at the age of 35 or 40 and do absolutely nothing else. We are talking about serious handicap.

The noble Lord, Lord Alton, questioned “seriousness”, and asked how serious should a disablement be. We have heard from two noble Lords how surgery in the womb and outside the womb during pregnancy is being developed. That is wonderful news for those foetuses that can be helped in this way. Some mothers of course choose to go down that road to help their babies in that way, but we should not impose that solution or promise it when it does not exist in all seriousness.

I have just one other point to add on the famous cleft palate case that nearly everyone has mentioned. I would like to tell the noble Lord, Lord Clarke, that about 1,000 babies are born each year with a cleft palate. Looking at the incidence of cleft palate among children generally, that means that not many of them are being aborted. The surgeon he spoke of should have the normal number to practise on. People are not having late abortions for that reason.

The noble Baroness, Lady Gould, mentioned the disabled students. We heard a moving speech from one of them at a meeting in the other place last week. The important thing about the NUS disabled students is that they are elected representatives. They are not interest or lobby groups; they are elected representatives of disabled people who do not want a woman’s choice to be affected by these considerations. They feel it is the woman’s right to make the decision.

Finally, supporting this amendment would mean that every woman in this country who has a severely disabled child would have to carry it to term or perhaps go through the same trauma as a 17 year-old Irish girl recently, who was known to have an anencephalic foetus and was shipped across to here, then back to there, and went through the law courts in Ireland before a decision was finally somehow made that she could have a termination of her pregnancy. Are we going to put all women in this country in that situation if they have a handicapped foetus?

I ask the people who support this amendment to have a bit of compassion. They speak as if they are being extremely compassionate and want to save the life of the child. Let us have some compassion for the mother who is carrying these pregnancies too. I do not believe that the noble Baroness, Lady Masham, or her supporters are cruel or inhumane. Of course they are not, yet it would be cruel and inhumane in the extreme to make women carrying seriously handicapped babies go to full term and deliver a child that they know would never have any quality of life at all, even if it survived the birth.

Lord Darzi of Denham
My Lords, as the House knows, the Government have—as previous Governments before them—a neutral stance on abortion and amendments are subject to a free vote. I will restrict my comments to setting out the reasoning behind the existing legislation and the likely effects of the amendment.

First, why do we screen for foetal abnormalities? The purpose of screening includes the identification of: anomalies that are not compatible with life, as we heard earlier; anomalies associated with high morbidity and long-term disability; foetal conditions with the potential for intrauterine therapy, and, as suggested earlier, early research in this field shows promise; and foetal conditions that will require postnatal investigation or treatment.

As far as possible, prenatal screening is to ensure that women and their partners have accurate information about the foetus. At whatever stage foetal abnormality is diagnosed, women and their partners need good-quality information about the implications of that result and the options open to them. The context in which parents choose whether to have a child should be one in which disability and non-disability are valued equally and parents should receive comprehensive, balanced information and guidance on disability, the rights of disabled people and the support available.

On the examination of terminations that are currently performed under this paragraph after 24 weeks, one finds that these cases are usually complex. There may be multiple anomalies rather than one. When the forms are classified, the code which is used is that of the primary condition. This does not always tell the whole picture of each individual case, which is exactly why, in 1990, Parliament chose not to define “serious handicap” in the Act. Parliament chose to leave this to the expert judgment of the two doctors, based on the merits of each individual case. The doctors must form their own opinion of the seriousness of the handicap the child would suffer if born, taking into account the facts and circumstances of the case. The existing guidance from the Royal College of Obstetricians and Gynaecologists furthermore urges obstetricians to err on the side of caution when considering whether an abortion could be performed on the grounds of foetal abnormality.

21:30:00

Many of your Lordships will be aware that the Science and Technology Committee in the other place has recently reviewed this issue, and its view, with which the Government concur, is that an exhaustive list of abnormalities is not feasible, nor desirable. The Government have accepted the committee’s recommendation to review the guidance on this subject, and have commissioned the Royal College of Obstetricians and Gynaecologists to review its 1996 guidance on the termination of pregnancy for foetal abnormality.

As regards the point raised by the noble Lord, Lord Alton, on foetal pain, the 1997 report of the Royal College of Obstetricians and Gynaecologists concluded that before 26 weeks’ gestation the nervous system has not developed sufficiently to allow the foetus to experience pain. I am not aware of any new evidence that has changed that conclusion. 4-D imaging is an exciting development in the field of imaging. Although the noble Lord made the point that the images illustrate the development stages of the foetus, from a scientific perspective they do not change the current knowledge about foetal viability or foetal pain. On the last question he asked, on the legal status of the foetus, both domestic and European law on discrimination—that includes the European Convention on Human Rights—apply only to living persons. The foetus is not regarded as a living person in domestic law and has no rights independent of its mother until it is born alive. The courts have consistently held that a foetus is not recognised as being a separate person from its mother.

Earl Ferrers
My Lords, will the Minister be kind enough to repeat that because it is important. When did he say that a child was or was not a live person?

Lord Darzi of Denham
My Lords, I referred to the legal status of the foetus. As regards the legal rights of a child, it is regarded in domestic and European law as being independent only when it is born; that is, after the birth of the child.

Baroness Knight of Collingtree
My Lords, some years ago a man who had four grandchildren, with another expected, drew up his will. He made arrangements to provide for the expected grandchild. There was a row and the people concerned took the matter to court. The court agreed that the child was alive at the time the grandfather died. Therefore, although he was not born, he was considered to be a person and he got the money that the grandfather left him.

Lord Darzi of Denham
My Lords, I am grateful to the noble Baroness. I have no doubt that the child would have had the right to the money once he was born.

Lord Alton of Liverpool
My Lords, will the noble Lord also confirm to the House that babies have been born as early as 21 weeks’ gestation and have survived?

Lord Darzi of Denham
My Lords, I am not disputing the scientific advances in that field. The exact accuracy of which week is something I could look into and refer back to, but certainly we have seen advances in that field.

This has been an interesting and detailed debate and I thank noble Lords for their contribution. As I said earlier, the Government have, like previous Governments, a neutral stance on abortion and amendments are subject to a free vote. Therefore, there is little I could add that has not already been discussed and I will leave it to your Lordships to draw your conclusions.

Baroness Masham of Ilton
My Lords, I thank all noble Lords who have spoken. It has been illustrated tonight that a committee should have been set up. A lot needs looking at and discussing.

I would just like to talk about one incident. I was invited to see a girl who had had a termination in a local hospital. She happened to be disabled and I asked her why she had a termination. She said, “I wanted to see if I could get pregnant”. The baby was aborted. It was perfectly normal. The legislation of the noble Lord, Lord Steel, has now got out of control because it is being used as a convenience.

I especially thank the noble Lord, Lord Clarke, for staying behind. He has a wife who needs his help because she has a problem. Therefore, would he please give my thanks to his wife for letting him stay?

We need to look at the issue more carefully. Ministers will know that a report has just come out about gynaecology and maternity services throughout England. London has come out very badly, but I am happy to say that the north has had better marks. However, more has to be put into the safety of children and mothers. The whole issue should be looked at in great depth and I hope that another place will also do that, because it will find problems across the country.

Of course, I want to protect the lives of many unborn children and I do not think that the Minister has answered the question of my noble friend Lord Alton: how serious is “serious”? That is the big problem that is facing us now because the club-foot and the cleft palate are not very serious disabilities—they can be put right—but those are the sort of things on which this is happening. It is very serious.

The House is pretty divided in this debate and I thank noble Lords again. I think that it will be brought back again in another place. Therefore, I beg leave to withdraw the amendment.

The Deputy Speaker (Lord Geddes)
Is it your Lordships’ pleasure that the amendment be withdrawn?

Noble Lords
No!

Division 1
28/01/2008 21:38:00

Ayes: 22
Noes: 89


21:49:00

Clause 59 [Surrogacy arrangements]:

Baroness Hollis of Heigham
moved Amendment No. 164:

164: Clause 59, insert the following new Clause—
 

“Infertility services
 

(1) Infertility services shall include services for diagnosis, treatment and appropriate information.
 

(2) Strategic Health Authorities shall report annually on their local commissioning arrangements for infertility services.”
 

The noble Baroness said: My Lords, in the absence of the noble Baronesses, Lady Finlay and Lady Jay, I have been asked, if the House permits, to move this amendment in their names and I promise no vote. As the noble and learned Lord, Lord Mackay, said in Committee, this issue concerned the pre-legislative scrutiny committee: that is, the postcode lottery of IVF treatment and that the NICE guidelines—they are not targets or requirements—did not appear to be followed as we believe they should.

That there is such a lottery can be in no doubt. The noble Baroness, Lady Finlay, furnished me with statistics to that effect. I understand the figures are for 2006-07 and they are the latest figures that she has. For example, East Sussex has a population only slightly less than that of Dorset’s PCT—326,000 to 395,000—yet East Sussex gave IVF treatment to only 32 women and Dorset treated 110 women. Mid-Essex, with a population of 359,000 in its PCT, treated 43 women; and south-west Essex, with 420,000 people in its PCT, treated 76 women, nearly double. Similarly within London, Camden, with 210,000 people in its PCT, treated 51 women; and Croydon, with a population of 343,000, treated 52 women. There is a variation of 50 per cent or more between adjacent authorities, which suggests that it is not just a matter of demographic profile, local needs or local wishes as expressed through PCTs.

Why does this matter? Your Lordships know the arguments, which were much more fully rehearsed in Committee. There are basically two. First, human misery, so eloquently described by the noble Lord, Lord Winston, led to the desperation of many women and their partners. If they could not get treatment from the NHS, that misery sent them into the private sector at high cost. Given that the private sector worked at profit, it sometimes offered treatment that was profitable but not efficacious—bordering, in some cases, on the exploitative. If it was improper, as I believe it is, to buy babies, there must be a question mark over the ability to buy embryos as opposed to having them as part of the gift solution within the NHS, which I suspect most of us would much prefer. The first reason is therefore that finance becomes a barrier and, once it is in the private sector, there is the risk of unnecessary and exploitative treatment in a competitive financial environment.

The second reason why the pre-scrutiny committee was concerned about the failure of so many PCTs to follow NICE guidelines was that it also means that, in desperation—and as a result of tight finance—many would-be mothers will seek the implantation of multiple embryos. Again, as many of your Lordships said in Committee, this presents both a high risk to the mother and foetus and, if there is a multiple birth, often a high cost to the authority in terms of the support—cots and beds—needed for small, premature, low-weight babies struggling with respiratory and feeding problems.

The amendment is modest. It simply requires the strategic health authorities to report annually on local commissioning arrangements. That is a gentle way of highlighting the problem in exactly the same way as reports from the Audit Commission highlight problems for local authorities by use of comparators of appropriate adjacent authorities with which it is proper to compare the cost, quality and delivery of services. Such reports work. They still respect the need for local choice, and the fact that different areas may have different demographic profiles and needs. They do make sure that, if there is a judgment not to spend as much on IVF treatment in one area than another, that is based on information, and not ignorance, as now too often applies.

I have read again the Committee speech of my noble friend Lady Royall, in which she said that this was the subject of an expert working group—which is splendid. I hope that that will be pursued, as I am sure it will be. Such an annual report would help the expert working group come to more firmly based and rooted solutions.

Therefore, I see this amendment as complementary to what the Minister is already proposing to suggest to the House—if her Committee speech is a guideline. It is in this context that we want to see as much IVF treatment in the NHS as is affordable, that there should not be a postcode lottery and that money should not be a hurdle to parents seeking to have a child. We should not expose parents to the profit motive of the private sector and also to the risk of multiple implantations. In that context, I hope my noble friend will agree that anything that encourages PCTs to provide equity of access to IVF treatment—and, as NICE has suggested, to a required and appropriate number of cycles—should be supported. I hope that my noble friend will welcome this amendment. I beg to move.

Lord Alton of Liverpool
My Lords, I should like strongly to support, as I did at earlier stages, the principles underlining the amendment so ably moved by the noble Baroness. We do not have anything to fear from extensive reporting. It enables us to look at the empirical evidence and, especially, as the noble Baroness has said, at issues such as multiple pregnancies and the subsequent risks of disability, which, topically, follow on the back of the previous debate in the House.

The issue of prematurity, which often comes up in these circumstances, needs to be assessed. I agree with what the noble Baroness has said. If IVF is to continue to take place under existing arrangements in this country, it is better that it is properly regulated rather than done outside in private clinics where there have been a number of abuses and where profit, rather than good medicine and good science, has been the motive. For all of the reasons that the noble Baroness has properly put to the House, I hope that this will be given a fair wind by the Government.

Baroness O'Cathain
My Lords, as a point of clarification, perhaps I may ask the noble Baroness, Lady Hollis, about the statistics for the numbers of IVF treatments in the various areas she mentioned. Would it not be better if we had statistics showing the number of requests for IVF? The noble Baroness mentioned various areas and I know something about the poverty levels in some of them. There must be areas in which people would not be looking for IVF because they could not afford to have any more children. It comes to the same thing, but it does not mean that women are being deprived of IVF treatment. Realistically, they are saying that they could not possibly have any more children or a child. I just wonder about that. There must be a list of those who have applied for IVF treatment. A judgment could be made about whether the local health authority was fulfilling its duty, in effect, in offering IVF treatment to everyone that did apply.

Lord Mackay of Clashfern
My Lords, I support this amendment, as I did when it was moved in Committee. One of the most important aspects of this is that NICE guidelines would apply if the infertility services in an area were brought within the National Health Service. There is a much greater tendency to apply them when the work is done in the National Health Service.

I suppose that I agree with my noble friend that, in a sense, the best statistics are those which show the availability of these services in an area rather than whether the gross numbers are different. The latter  might be explained by differences in the level of requests in each area. Therefore, the statistics might need to be refined. The amendment, which echoes the spirit of the one that was moved in Committee, does the compulsion, if I may call it that, in a more gentle way than was originally proposed. Just requiring strategic health authorities to report is a gentle, but probably very effective, way of finding out what they are doing in this area.

22:00:00

Baroness Royall of Blaisdon
My Lords, I recognise the strength of feeling expressed by all noble Lords, including my noble friend who moved the amendment. Since our debate in Committee, the Department of Health has carried out a further analysis of a recent survey that it undertook of primary care trust provision of fertility services. The survey focused particularly on IVF, the service that couples have the most difficulty accessing. It does not answer the specific questions posed by the noble Baroness, Lady O’Cathain, but I shall come back to her in writing with those figures, if they exist.

The survey had an almost 100 per cent response rate and the responses are currently being reviewed to verify the findings. The initial indications are that 30 per cent of primary care trusts that replied are providing one fresh cycle of IVF with no frozen cycles; 35.5 per cent are providing one full cycle involving a fresh cycle and any frozen cycles that may be possible using embryos stored after the fresh cycle; 27 per cent report that they are providing two cycles; and 5 per cent report that they are providing three cycles. A very small number have temporarily suspended IVF services and will be reviewing them. This is not good enough, but I believe that it signals a move in the right direction in the implementation of the NICE infertility guideline. The survey will be a help to the project that Infertility Network UK is carrying out to raise primary care trusts’ awareness of good practice in commissioning infertility services and should help to inform the thinking of the expert group.

For the next steps, I propose that we ask the expert group to consider the spirit of the noble Baroness’s amendment and that we allow it time to consider how best primary care trusts can identify local fertility needs and explain their local decision-making, including the value of primary care trusts reporting to strategic health authorities annually and the SHAs making those reports public. Let us through this debate ask the expert group to consider that when it is fully established and let us look forward to its findings. I hope that on that basis the noble Baroness will feel able to withdraw her amendment.

Baroness Hollis of Heigham
My Lords, I am grateful for the support from around the House. We are having a brief recap of the debate that we had more extensively in Committee with far more information from the mover of the amendment than I was able to offer tonight. The noble Baroness, Lady O’Cathain, is right about the stats—not their flakiness, but their incompleteness. In the three hours’ notice or thereabouts that I had of this amendment, I tried to get more complete coverage. That was why I cited the difference between the Essex authorities. I have the stats for west Essex, mid Essex, north-east Essex, south-east Essex and south-west Essex. There are huge variations within a single county with half a dozen PCTs, where one would expect a similar profile. Similarly, within inner London boroughs one might expect a somewhat similar profile, yet there appears to be little correlation between the size of the authority, its expenditure on IVF and the number of women presenting and receiving treatment. I agree that we need more complete statistics than we have.

Baroness O'Cathain
My Lords, I know that I should not do this, but let me say that the real issue is local affluence or the lack of it. One of the counties that was mentioned—I shall not say which—is completely different from its neighbouring county in the annual income per head. In fact, it contains one of the most deprived towns in the country. If we had an idea of the levels of affluence in each area, it might be easier.

Baroness Hollis of Heigham
My Lords, the noble Baroness is absolutely right. For example, I know Peterborough and Waveney PCTs a bit. They are not dissimilar in size, yet one of them has twice as many women receiving treatment. The noble Baroness is right to say that the statistics are incomplete; I wish that I had had the time or the notice to do proper research on this. None the less, it is clear to me from the evidence that we have that there is a postcode lottery, that finances are a bar to many women seeking treatment and that those who do seek treatment in the private sector are exposed to the risk of exploitation as well as to the risk of multiple pregnancies.

The noble and learned Lord, Lord Mackay, hit it on the head when he said that this is a gentler version of the amendment moved in Committee. It is a gentler strengthening of the wish to see this information made available and a gentler way of bringing more and more PCTs into best practice as recommended by NICE. On behalf of the two noble Baronesses who are absent this evening though inescapable family commitments, I ask my noble friend whether she would be willing to accept at Third Reading an amendment giving the Government permissive power by regulation to do this if, as and when the expert group would like such a power?

In other words, if the expert group is to report in, say, one or two years’ time—I do not know the timetable—and wished to have this power available to it, would it be able to call for reports to the strategic authority without needing either primary or secondary legislation? If it needed secondary legislation, I urge my noble friend to consider whether she would bring forward an amendment—or encourage the noble Baroness, Lady Finlay, to do so—giving a permissive power, by regulation, to do what could be necessary if, in due course, the expert group recommends it. Can my noble friend help me here or would she prefer to write at some point in future?

Baroness Royall of Blaisdon
My Lords, I will certainly look into that suggestion. However, the Government would hesitate to put into either primary or secondary legislation that there should be an annual report from SHAs or PCTs. However, I will certainly look into it and come back to your Lordships before Third Reading.

Baroness Hollis of Heigham
My Lords, I am grateful to my noble friend, but on behalf of our missing friends I am seeking a permissive power, so that one could do this should one wish to do so—not that one must, but that one may. However, on the assurances of my noble friend I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Exclusion of embryos from definition of “organism” in Part 6 of the EPA 1990]:

Baroness Royall of Blaisdon
moved Amendments Nos. 165 to 167:

165: Clause 60, page 50, line 2, leave out “inter-species embryos” and insert “human admixed embryos”
 

166: Clause 60, page 50, line 9, leave out “inter-species embryo” and insert “human admixed embryo”
 

167: Clause 60, page 50, line 10, leave out “(7)” and insert “(13)”
 

On Question, amendments agreed to.

Schedule 7 [Minor and consequential provisions]:

Baroness Royall of Blaisdon
moved Amendments Nos. 168 to 175:

168: Schedule 7, page 98, line 22, leave out “inter-species embryos” and insert “human admixed embryos”

169: Schedule 7, page 98, line 23, leave out “inter-species embryos” and insert “human admixed embryos”
 

170: Schedule 7, page 99, line 7, leave out “inter-species embryo” and insert “human admixed embryo”
 

171: Schedule 7, page 99, line 11, leave out “inter-species embryos” and insert “human admixed embryos”
 

172: Schedule 7, page 99, line 14, leave out “inter-species embryo” and insert “human admixed embryo”
 

173: Schedule 7, page 101, line 13, leave out “an inter-species embryo” and insert “a human admixed embryo”
 

174: Schedule 7, page 101, line 20, leave out “an inter-species embryo” and insert “a human admixed embryo”
 

175: Schedule 7, page 101, line 28, leave out “an inter-species embryo” and insert “a human admixed embryo”
 

On Question, amendments agreed to.

Schedule 8 [Repeals and revocations]:

Baroness Royall of Blaisdon
moved Amendments Nos. 176 to 178:

176: Schedule 8, page 102, line 18, column 2, leave out from “services,”” to end of line 19
 

177: Schedule 8, page 102, column 2, leave out lines 27 and 28
 

178: Schedule 8, page 103, line 8, column 2, leave out “paragraph 17” and insert “paragraphs 3, 5, 7, 9, 10, 12 and 18.”
 

On Question, amendments agreed to.

House adjourned at 10.07 pm