Human Fertilisation and Embryology Bill [Lords]

Public Bill Committee, 10 June 2008.

(Except clauses 4, 11, 14 and 23, schedule 2 and any new clauses or new schedules relating to the termination of pregnancy by registered medical practitioners)

Jimmy Hood (Labour, Lanark and Hamilton East)

Before we begin, I should say that, if hon. Gentlemen wish to remove their jackets, they are welcome to do so.

Clause 24

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I take this opportunity to welcome you to the Chair, Mr. Hood. We have made excellent progress and I am sure that we shall do so today. As I said during the debate on the amendments to the clause, I have a couple of brief questions to ask. What is the basis for the current amount of data that is collected? The main problem that has been raised with me is the regulatory burden of a full amount of information given in the register of information for all treatment cycles, the majority of which do not result in a pregnancy.

We have debated why it is necessary to maintain a register of information in respect of the treatments that produce a pregnancy and a child. There are at least two main reasons. The first is to enable contact to be made in the future, if requested by a child born through in vitro fertilisation, particularly in respect of donor gametes and non-identifying or identifying information about the genetic parent when the person is not the legal or social parent. The second reason is to ensure that the data is accurate on the outcomes of IVF clinics, given the nature of the business and the relatively high stakes involved compared with other businesses, and thus the potential vulnerabilities of the patients, who are the consumers of the business. The clinicians understand those two reasons, but they ask why it is necessary to have identifying information in such great detail about all patients even when a pregnancy does not result or is not known to result. I imagine that reasons will be given for such action, but I just want to deal with them in advance.

It is necessary to retain information in case of adverse effects of some treatment. However, in that sense, it is not different from any other treatment. It is necessary for medical records to include information so that it is possible to track any potential problems caused by drugs. The potential for risks would be the same as that posed by full medical treatment, but for no other full medical treatment is there a central database, especially on treatment that does not result in pregnancy on which a huge amount of information is collected with patients’ names attached. The clinics that have contacted me about such matters understand that it might be necessary to provide information centrally and use patient numbers, but identifying patients would provide an additional burden that they consider unnecessary unless pregnancy results, in which case such a situation should be possible. I have dealt with the second argument for the need to collect the data and information about outcomes so that success rates are recorded. However, that can be done without the need for detailed, identifying information as set out under the Bill.

Will the Minister say whether the Human Fertilisation and Embryology Authority has received the same representations as I have about the extent to which the regulatory burden of the register of information and requirements will be onerous? Does it recognise that there might be scope for reducing the amount of information, particularly identifying information, that is held on a central database for no good reason over and above the reason that such information is available in medical notes on safety and outcome measures, when no child is produced or known to have been produced? If it recognises that that is a regulatory burden, has any consideration been given to how it could be reduced? While that might have been appropriate in 1990, standard IVF and insemination, particularly where, sadly, it does not result in a pregnancy, are now routine medical techniques and interventions.

It is peculiar that for those routine medical interventions, a great amount of information must be submitted to a central database which has not as yet been used for any research purpose. Without having a central database of identified patients, it is still possible to do research where non-licensed treatments—which could be more extensive in terms of drugs and surgery—are not subject to such requirements. It is a valid point, and I would be interested to hear the Minister’s response.

Mark Simmonds (Conservative, Boston and Skegness)

I join the hon. Member for Oxford, West and Abingdon in welcoming you to the Chair, Mr. Hood, and let me say how much I am looking forward to serving under your guidance and chairmanship. I have three quick questions for the Minister on clause 24 stand part that we did not manage to cover in the debate on the amendments.

The first point is about counselling. Under the clause, the donor is informed when a request has been made for information about them. In most circumstances, there will be many years between the donation that leads to the genetic offspring and the genetic offspring asking for information about the donor. It is a minimum of 18 years, but it could be much longer. Clearly, I welcome the stipulations in schedule 4 that relate to counselling for the person requesting the information, but what about counselling for the original donor? Obviously, it should not be compulsory or mandatory, but there may be significant changes of circumstances—the donor’s life may have changed dramatically, they may be in a marriage or another relationship and it could be extremely traumatic to bring such a new piece of information into their life. I wonder why no counselling is offered in the Bill for the original donor.

The second point is about the disparity in ability to request information at different ages. As I understand it, the donor-conceived person is able to request non-identifiable information at 16, but other information is available only at 18. Perhaps the Minister could put on the record the logic behind that particular difference. It may be simply that people are legally allowed to be in sexual relationships at the age of 16, while 18 is the general cut-off point for moving into adulthood.

The third point is about proposed new section 31ZB, which deals with checking whether people in intimate relationships are genetically related. It is about getting the permission of the other party in that intimate relationship. What happens if both parties in that intimate relationship are under the age of 18, and therefore only able to receive non-identifying information, when the point of getting that information is specifically to identify whether the partner in that intimate relationship is related to them?

Dawn Primarolo (Labour, Bristol South)

Good morning, Mr. Hood; I welcome you to the Chair. I will deal first with the questions raised by the hon. Member for Oxford, West and Abingdon. I wish to make a request to help me focus on answering the points raised. I say now that there is absolutely no criticism implied, bit it is difficult when the hon. Gentleman puts the case and then put the Government’s case as well. He answers his own questions and ends with a series of questions that he has already answered in the course of what he has said. I will repeat them on this occasion as the Government’s position as well, but we need to try to focus.

The hon. Gentleman asked specifically about the disclosure of information regarding patients, particularly where there have been unsuccessful cycles of IVF. He went on to give the answer. As he pointed out, the answer is, first, that the information has to be collected because at the beginning of the cycle it cannot be known that the cycle is going to be unsuccessful—that there will not be a resultant child. Secondly, the information could be relevant to subsequent courses of treatment and follow-up cycles for the individual. Thirdly, the collection of information clearly provides for long-term consideration and research into fertility drugs and comparing the effects on women, whether there is a pregnancy or not. The information provides the basis for further research. Finally, there may be other important areas in the consideration of treatment—that links back to the question of identifying information, particularly follow-up information. Therefore, the hon. Gentleman put the case for why the proposals are as they are, and he answered on behalf of the Government’s position as well.

The hon. Gentleman asked two further questions. The first was about representations that he had received. He asked whether the Government had received the representations that he had received about the collection of information and asked what was our response? Yes, we did receive those representations. It was not a majority view that the requirements were onerous—there were a few of that view. We considered the information powers, because we appreciated the comments. However, we remained of the view that it was important for the HFEA to collect data for all licensed treatments and that we were striking the correct balance between protecting the confidentiality of patients and allowing disclosure under justifiable circumstances. The BMA supported us in that approach. The hon. Gentleman’s second question was specifically geared to how the provision might create regulatory burdens. My response is that the HFEA’s new electronic data interchange system with clinics should certainly help to ease any feelings that the there is an undue burden of collection of information.

In putting all of those points together, the hon. Gentleman clearly justified the system. We considered some of the views put before us and discussed the matter further. We came to the conclusion that we had struck the right balance. We were supported in that by other stakeholders. We believe that the regulatory burden will be considerably alleviated by the system of electronic exchange.

The hon. Member for Boston and Skegness asked a series of questions, particularly about the disparity—which I will deal with first—between the information to which people are given access at 16 and 18. Again, he touched on the answer in his remarks. We have spoken to all of the stakeholders and, of course, the Committee does not come cold to the discussion. We are talking about a consultation of more than a year, with the consultation results published, followed by draft legislation and the pre-scrutiny stage, and then consideration in another place, before the proposals get here. We have had the opportunity for consideration a number of times. The view was that 18 was the suitable age—in terms of other legal requirements and maturity—to give people access to identifying information about donors. This is, of course, significant personal information that could have a dramatic impact. We cannot be sure that the individual knows already that they are the result of a donation of either sperm or egg. We are relying on the parents to have had discussions with their son or daughter. It was agreed that in extreme cases where the individual has not been informed, 18 is the sensible point for access to information.

The hon. Member for Boston and Skegness also asked why we set the age for access to non-identifying information at 16. I am assured that access at that point is sufficient to ensure that within the records there is no family connection. At that point it is not necessary to know the identity; it is enough to be assured. I am not clear whether in extreme circumstances there would need to be a loop back into the information, and the HFEA would need to consider whether or not identifying information was in the best interests of the individual. I will check that matter and come back to the hon. Gentleman. There are two steps. One applies to, for instance, an individual who at age 16, with consent, is going to get married. It also applies where the parents know that their son or daughter is planning to live with or, as the hon. Gentleman said, be sexually active with a partner, and they want to make sure of the information.

Then the hon. Gentleman asked about counselling for the donor. That was covered in previous debates about counselling when the donor becomes involved in the IVF programme. Of course, an individual has to be aware that the request for information could happen rather a long time ahead and their circumstances could be different by then. That is part of the complexity of counselling when an individual is considering being a donor; it must be thorough. It might be the case that the donor would have access to counselling information at the time that the request for identification was made, just in case. That is not an absolute condition, but it would have to come back round the loop. Counselling would be part of their preparation at the very beginning, as they took the decision to be a donor, but would be accessible again at the time when identifying information could be made available. I understand that there is provision for that. These are delicate points.

The hon. Member for Boston and Skegness asked a question about new section 31ZB and the fact that it does not enable the applicant to find out identification. It does, however, provide access to the information to ensure that there is not an issue that would lead to the need to identify the donor. Should, for some reason, the result that came back from the HFEA raise an issue of concern, that would open up the debate automatically, regardless of age, because the individual would need to know why. Imagining all the circumstances, it is difficult to see that there would not be some pressure on the system at that point. The HFEA would have to deal with that. I hope that I have dealt with the points that were raised by both the hon. Member for Boston and Skegness and the hon. Member for Oxford, West and Abingdon. On the question of consent and information, they have tabled amendments to the next clause that specifically focus on those issues and when consent is needed for the passing on of information. Perhaps some of the other points will be picked up again then.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to have the opportunity to respond to the Minister. I was listening carefully to what she said. In my opening remarks, I did not answer my own question or put the Government’s case. I raised two points that I thought that the Minister might use in her response and raised further points on them to save time. I thought that that would be easier than seeking to intervene on the Minister, which might not be her preference, during her response.

In respect of her second point about the need to have this information for follow-up, even for unsuccessful treatment cycles, that follow-up is done by the doctor and the clinic. That is the same with any medical treatment. There are often follow-up treatments in medicine. It is not usual to be required to record all the details, including identifying information, on the central database in order for there to be an appropriate follow-up. Because of the stringent confidentiality requirements, which we are about to discuss, it might be difficult for one doctor to pass on to another doctor information about previous treatments. I am not sure whether the matter will be helped by this form of national database. I do not believe that future doctors would use the resource to check what existing treatments someone has had; they would normally ask the patient. I do not understand why the issue of follow-up is a good reason to hold this information about unsuccessful treatment cycles.

The Minister also argued in respect of long-term research. I said that I did not see how that was different from any other form of medical treatment in which there is a research interest. I said that research can be done through the usual consent arrangements prospectively or even retrospectively, again with the appropriate consents and ethical approval. My understanding is that there has not been any useful research based on all the information on the database by the HFEA. I know that amendments have been tabled to make such research easier in the future, but it did not seem to be a good argument. That was why I raised my points in advance. It was not to answer my own question, but to help move forward the debate by asking whether they could be addressed. The Minister may feel that she has done that, but I do not feel that there has been sufficient justification. However, I understand her point about not knowing whether there is going to be a pregnancy and therefore needing to collect the information in advance. If people from abroad, or in this country, do not opt to go back for a post-natal follow-up, that data set is incomplete. In the end, we rely on patients coming back for follow-up.

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman will concede, I hope, that I also made the point that follow-up was much wider than on the individual patient’s cycles. There is also follow-up about the impact of drugs and incidents of cancer 20 years on. It is about access to information from longer term studies and to understand why one cycle was not unsuccessful and another one was. That may be something that needs to be studied over time. The information was necessary for that type of follow-up as well.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I understand that justification. As I said earlier, I would argue that it is not necessary to have a national database to do that. We do not have a national database in any other form of medicine, but prospective, case-controlled, and retrospective epidemiological trials are done. Also, no useful data have been gathered from this database in the nearly 20 years that it has been going. I accept, however, that the Bill changes provisions to allow more research. I guess we will know in the future whether that is possible, not only prospectively for new patients, but for all the patients that have been treated.

I understand what the Minister is saying about motives. I am not arguing that this is some form of malevolent intervention. I happen to be of the view—I accept what she says about the consultation and that this is not a majority view—that the benefits of this type of central database for the treatment of donor cells from pregnancy are not worth the regulatory burden. However, I was pleased to hear what she said about the fact that the data collection and entry may be made easier due to technological advances. I think that we all have our fingers crossed on that, given the possibility of these things going wrong. I think that I have made my case, and the Minister has put the Government’s case, and on that basis, I shall finish.

Clause 25

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 38, in clause 25, page 26, line 4, at end insert—

‘(za) the disclosure is made—

(i) on clinical grounds, as part of the patient’s medical care, to a practitioner who is bound by the ordinary duty of patient confidentiality, or

(ii) in order to ensure the safety of medical treatment which the patient is to receive outside of licensed premises.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following: Government amendments Nos. 45 and 46.

Amendment No. 150, in clause 25, page 27, line 27, at end insert—

‘(v) the disclosure is made in order to ensure the safety of medical treatment which the patient is to receive outside of licensed premises.’.

Amendment No. 151, in clause 25, page 27, line 27, at end insert—

‘(v) the disclosure is made, on clinical grounds, as part of the patient’s medical care, to a practitioner who is bound by the ordinary duty of patient confidentiality.’.

Government amendments Nos. 47 to 54.

Amendment No. 37, in clause 25, page 28, leave out line 46 to line 8 on page 29.

Mark Simmonds (Conservative, Boston and Skegness)

Clause 25 relates to the sharing of information—between and with whom—the restrictions on disclosure, and the exceptions to those restrictions. I shall speak specifically to amendment No. 38.

In proposed new section 33C to the 1990 Act, the Bill provides for consultation and regulations to be made to allow the disclosure of identifying information without consent for the purposes of medical or other research that is

“necessary or expedient in the public interest or in the interests of improving patient care”.

However, as the Minister and many members of the Committee will be aware, this was debated at some length in the House of Lords. Members of the Lords believed that the confidentiality provisions of the Bill were too tight, thus preventing sufficient research on children born by IVF. In situations in which women conceive through IVF, there is no procedure for the woman’s obstetrician to be told about the method of conception. Clearly, this must be looked at in the context of patient confidentiality. Obviously, if a woman does not want that information to be passed on, her privacy should be protected.

However, there are cases in which sharing such information would be beneficial, and there seems to be a presumption against that information flow, although perhaps the presumption should be in favour of it, even though I do not think that it is relevant that obstetricians need to know who the donor was, or whether it was the partner’s sperm or a donor sperm that fertilised the egg. Clearly, with IVF, women undergo treatment and complex procedures that change the body. Such a thing would, in some circumstances, enhance patient care in the context of strict confidentiality, which does not apply to other sensitive or personal conditions, such as considerations of mental health. The amendment would allow for the sharing of information between medical practitioners, which could improve patient care, in the context of confidentiality. The woman’s privacy would be respected, and consent for that information to be passed on could be withdrawn, if she wished.

Amendment No. 37 would remove the regulation-making power in proposed new section 33B of the 1990 Act. My understanding is that the power enables future additional exceptions to be made on who can request information, who must be informed, and with whom it can be shared. However, if consent is the cornerstone of the Bill, such issues should be debated and put on the face of primary legislation. Members of the Committee will see a very comprehensive list of exemptions on the main thrust of the clause in paragraphs (a) to (u) of proposed new section 33A(2). The matter has obviously been thought through very carefully, but will Minister put on record why she feels that it might be necessary to amend the list, given that it has clearly been thought through in great detail? Can she give the Committee an example of an amendment that might occur in future, although I understand that it might be difficult to find an additional category that is not covered in paragraphs (a) to (u)?

My final point about the clause concerns proposed new section 33A(3)(a), which details the interrelationship between the Bill and the Congenital Disabilities (Civil Liability) Act 1976? Will the Minister explain how the measures work together?

It would be helpful if the Minister could clarify whether the Government amendments are all tidying-up provisions, or whether they would actually change the meaning of the clause. They seem to remove certain provisions, but that could just be tidying-up drafting.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I tabled a couple of the amendments in the group, but it might be best to hear the Minister’s description of the effects of the Government amendments. They are better drafted than those in my name and, if I may say so, those tabled by the hon. Member for Boston and Skegness. The right hon. Lady’s amendments are comprehensive and complex, and if she is willing to accept questions after she has explained them, that might speed things along.

Amendment No. 151 states that an exception would be made for disclosure on clinical grounds

“as part of the patient’s medical care, to a practitioner who is bound by the ordinary duty of patient confidentiality.”

Those of us who want the rules on confidentiality to be loosened are not talking about a free-for-all. We just want to bring the provisions more, albeit not totally, in line with standard medical care rules under which medical notes are confidential. There are significant professional and, indeed, possibly criminal consequences from a breach of medical confidentiality, which is something that I feel strongly about. I have argued that the same procedure should apply to politicians and their children in respect of vaccinations, given that many in the media think that that should be a free-for-all, although I disagree.

Nevertheless, several clinicians have raised a problem with me. I shall not repeat what Lord Patel and Lord Winston said in the other place because that can be read, but scientists from Newcastle have explained that when a treatment is provided in a separate tertiary clinic, there is a clear distinction between the initial investigation of the problem and the subsequent provision of treatment. In a tertiary NHS referral centre, it is likely that the initial investigations and counselling will be carried out in a general infertility clinic. That might also occur a long time from the possible treatment. For instance, an unmarried 18-year-old with a severe pelvic infection will be counselled about the potential impact on fertility and the need to consider IVF. Such records—I guess because this is a carried out in a licensed centre by a licensed person—are currently included in law under strict confidentiality regulations because they refer to IVF, and that is inappropriate.

There are two ways in which to tackle the problem. We could argue that only limited information should be included in the provisions and that they should be loosened to enable communication between doctors in the best interests of the patients in good faith. Doctors should always be answerable in respect of complaints to medical regulators and the professional regulator, the General Medical Council.

The Government have heard such concerns in the House of Lords on several occasions and I note that their amendments represent a response to that. I look forward to hearing the right hon. Lady explain their effect in detail. I hope that the clinicians who have contacted me will be satisfied by what she says, as well as the potential of the regulation-making power. I share the view of any Opposition parliamentarian that wide-ranging, regulation-making powers are questionable, but I feel more comfortable with the inclusion of the provision, given that I do not think that this debate has ended.

IVF still has a cachet, which makes it sensitive, but as its special status becomes less special, and as it becomes more routine, for many patients—it will always be their decision—it might well become appropriate to change the provisions to ensure that we keep up to date with what is practical and appropriate, rather than stick to what was felt to be appropriate in 1990.

Ian Gibson (Labour, Norwich North)

I wonder, Mr. Hood, whether I could have your view on an issue about the running of this Committee that is beginning to bother me. Several documents are being floated by people who have tabled amendments. During my time in Parliament, I have sat on several such Committees, and when documents are received from experts, it is important that every Committee member sees them so that we can come to a balanced judgment. Could you rule, Mr. Hood, that if people read from documents from eminent professionals, they be made available to the whole Committee? I say that because, advisably, I challenged a document before, and within an hour, I was being challenged by those who put the document in. My answer to them was, “Why didn’t you send it to all of us? How do I know whether what you are saying is true? Give us the evidence so that we can see.” I think that we are getting restrictive readings from different documents and that the Committee is hearing only half the story. We all feel passionately about this issue and want to get seriously involved.

Jimmy Hood (Labour, Lanark and Hamilton East)

I thank the hon. Gentleman for his point, but that is not a matter for the Chair. If Members receive information from other sources, it is for them to deal with that as they see fit. If evidence was given to the Committee per se, all members of the Committee would have that information, so that would not be a matter for the Chair.

Ian Gibson (Labour, Norwich North)

Perhaps the organisations or individuals that send in such information are not aware of Committee procedure. By floating it to one Committee member, they restrict other’s involvement in the debate. When something is put forward, perhaps it should be presented by the individual to the Clerks so that they can judge whether it should be distributed.

Jimmy Hood (Labour, Lanark and Hamilton East)

Again, the hon. Gentleman makes his point, but I reiterate that that a matter for not the Chair, but those supplying the information to Members and, indeed, the Members themselves.

Dawn Primarolo (Labour, Bristol South)

The HFEA is required to collect details of licensed treatments for its register of information, which contains identifying information about everyone who has received treatment, including IVF or donor insemination. The 1990 Act prohibits the disclosure of such information by either the HFEA or a licensed practitioner, and that is subject to a criminal offence, as the hon. Member for Oxford, West and Abingdon reminded the Committee. The Bill provides for exceptions to be made to that provision, so we have moved from the requirements of the 1990 Act to the exceptions, some of which we have dealt with this morning. Such exceptions are when a person identified in the information to be released has consented to its release, with the exception, of course, of donor information—we covered this in the previous clause—which is protected to a particular age; when the information would not identify any individual; or in an emergency, when a woman who has received treatment or services is in imminent danger that makes it necessary for information to be released. The list of exceptions consolidates those already permitted under the 1990 Act, as well as introducing some new ones. Furthermore, as the hon. Member for Boston and Skegness mentioned, the Bill contains a regulatory power that enables additional exceptions to be made.

When the hon. Member for Boston and Skegness referred to amendment No. 37, he asked me specifically why we need the regulatory measure. He referred to paragraphs (a) to (u) of proposed new section 33A(2). To be frank, the answer is that every exception that we can think of is already there, although we cannot think into the future in terms of future-proofing. The regulation-making power was in the 1990 Act. Measures would be subject to the affirmative procedure and the power would be a method of future-proofing the Bill, just in case. The hon. Gentleman is right to say that we made every attempt to put everything in the Bill, but we still believe that this measure is necessary in case—as has happened in the past—we need further exemptions. The regulations would not change the principles within which the exemptions work. He asked whether I could name any; I am afraid that I cannot because we think that we have been quite thorough.

I shall deal with amendments Nos. 38, 150 and 151 and respond to the questions asked by both hon. Gentlemen before moving on to the Government amendments. The amendments would provide additional exceptions for the disclosure of information. Specifically, they relate to the situation if the disclosure is made on clinical grounds as part of the patient’s medical care to a practitioner who is bound by the ordinary duty of patient confidentiality, or if it is necessary to ensure the safety of medical treatment that the patient is to receive outside licensed premises. Again, the hon. Member for Oxford, West and Abingdon drew comparisons with what happens elsewhere in medicine with regard to the exchange of information.

The Government’s view is that consent on disclosure should always be obtained when possible, and that doing so need not necessarily be burdensome. We appreciate that there are occasions when, during the course of treatment, it would be necessary for clinicians to share information with other health professionals. However, because of the consent arrangements in the Bill—I will go on to make further points—we feel that it is more appropriate to provide for the obtaining of general consent from the patient for that purpose at the beginning of treatment. That would enable clinicians to be confident that they were not acting outside the patient’s wishes, while also allowing them to share appropriate information regarding the treatment of the patient.

There are circumstances in which patients would perhaps want to limit the people who could be told about their treatment—perhaps they would not want such information to go to a GP who is a relative or a friend. By consenting at the beginning of treatment, the extent of information sharing could be limited accordingly. Again, that echoes back to a theme that we have discussed in previous clauses about the importance of clear explanation to the patient and clear adherence to consent.

Even after amendment, the provision would not provide scope for clinicians to disclose confidential patient information without the patient’s consent. I am not referring to drafting; I will reference other requirements. I should say something to the hon. Member for Oxford, West and Abingdon as a caveat because I have been a Member of the House for 21 years—quite a long time in opposition, although not recently, thank goodness. It is hard to draft amendments because parliamentary counsel are highly skilled. His amendments are about making progress on the principle, and I understand entirely what he wants to do.

The amendments would not provide for that because before information was disclosed to the health care professionals involved in a person’s treatment, the doctor would still need to consider whether disclosure was compatible with the Data Protection Act 1998, common law and any other relevant law where consent is generally required. Therefore, requiring the consent right at the beginning, and allowing that general disclosure, is in our view much more secure for the clinicians as well. They would have to satisfy themselves in all those other areas that they were disclosing information in the correct way. It is the Government’s view that the Bill strikes the right balance in respect of requiring consent to be obtained before identifying information is disclosed, even when that is to other health care professionals, with the exception of emergency situations. Consent to such disclosure in the course of treatment can be obtained, as I said, prior to the initiation of treatment, when the patient is consenting to that treatment.

The amendments that would introduce an exception to the disclosure are, in the Government’s view, inappropriate. The disclosure of identifying information without consent should be permitted only where there is good justification. There was a lot of discussion about that between the Government and stakeholders. The British Medical Association supported the Bill’s position. Obtaining consent for disclosure to health care professionals is possible. Therefore, the exception proposed by the amendments is not justified.

The hon. Member for Oxford, West and Abingdon made a point about the problems of disparity between different medical professions and that we are setting a higher level. I hope that I have dealt with that point, because a general consent at the beginning gives greater certainty and clarity to clinicians than having to satisfy themselves subsequently about data protection, common law and other law relating to confidential information, which is what the amendments would require.

The hon. Member for Boston and Skegness asked about the Congenital Disabilities (Civil Liability) Act 1976. That did not trip off my tongue—I was prompted on the exact date, I hasten to add. The 1990 Act extended the reach of that legislation to cover infertility treatments. Basically, the Bill does not alter that position. The 1976 legislation was carried over to the 1990 Act, which made the cross-reference and put infertility in, but the Bill, as it amends the 1990 Act, is silent on that, because it does not alter the positions. I hope that that deals with his point.

On the Government amendments, I suppose the quick response, although I might have to give a little more detail, is yes, they mostly tidy up the consent exceptions, following discussion in another place. The changes are tidying-up measures. However, there is one instance in which we need to be absolutely clear with regard to the interaction of the exceptions. We have to ensure that we do not inadvertently open up the consent to disclosure of non-identifying information or cause some difficulties in that regard. We are managing two types of information—the identifying and non-identifying—and under what basis it can be disclosed.

We recognise that it is very important that the 1990 Act and the Bill strike the right balance between safeguarding the confidential information of patients, their partner, donors and children held by the HFEA and clinics while, at the same time, allowing information to be disclosed by the HFEA and clinics in circumstances that warrant it. However, the 1990 Act is not always as conducive as it could be in that regard. For example, it prohibits the HFEA from disclosing identifying information about patients, even in cases in which the patient consents to such disclosure. That is one issue that needs to be addressed.

I will go through the Government amendments very quickly and return to them if Members have further questions. Amendment No. 45 amends and simplifies the wording in new section 33A(2)(g) to (j) and clarifies it to strike the important balance on consent, including identifying information as long as individuals have given their consent.

Amendment No. 46 is consequential to the new wording in proposed new section 33A about the disclosure of information, and replaces wording removed by amendment No. 50. It clarifies that the HFEA can disclose identifying information from its register to avoid imminent danger to a person’s health.

Amendment No. 47 removes wording from proposed new section 33A about consent to disclosure when treatment services are provided to two people together and both are identifiable. It recognises the provisions in proposed new section 33AB whereby the consent of each individual identified must be obtained.

Amendment No. 48 removes wording that is consequential and replaces it with wording that will be introduced by amendment No. 54. Amendment No. 49 clarifies that the disclosure of information for the purpose of investigating an offence or suspected offence, or in connection with legal proceedings, does not apply to identifying donor information.

Amendment No. 50 removes wording from new section 33A consequential to the replacement wording that is introduced by amendment No. 46. Amendment No. 51 reflects the fact that the Bill introduces provisions for fatherhood agreements for unmarried couples in which donor sperm is used. Amendment No. 52 is consequential on amendment No. 45. Amendment No. 53 defines what the term “identifying donor information” means with regard to new section 33A(2), which is a consequence of amendment No. 45. Amendment No. 54 applies in conjunction with amendment No. 45.

Therefore, without going into any detail, I am trying to indicate to the hon. Member for Boston and Skegness that we are cross-referencing and making it absolutely clear that the exemptions fit together and do not breach any of the principles. Overall, the Government amendments provide clarification rather than a change of policy by continuing to strike the balance between disclosure of identifying information, particularly that which might be helpful for follow-up research into the health of patients and their children, and ensuring that consent is properly and rightly obtained.

If I have not covered any of the points, Mr. Hood, I would be happy to catch your eye and return to them.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for her exposition on the amendments, which I followed on a track changes document—I think that that is the only way to do it. First, in response to a point made by the hon. Member for Norwich, North, I am a little confused. I had a meeting with Alison Murdoch last night, who is a clinician in Newcastle. I am sure that he would have been entitled to attend had I known that he was around and interested.

Ian Gibson (Labour, Norwich North)

Sorry.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I did not think that it was illegitimate to meet a clinician—

Ian Gibson (Labour, Norwich North)

What a cheek!

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

And to ask her to e-mail me—[Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I did not think that it was unreasonable to meet someone and ask them to e-mail me a couple of points because the meeting was coming to an end, and then to raise them in Committee. That is entirely appropriate. In respect of the hon. Gentleman’s point earlier, I checked with Newcastle about the mitochondrial DNA and I checked my e-mail. I understand that that was sent to all members of the Committee. I merely quoted from a document sent to all members of the Committee about the research on mitochondria and IV-derived gametes.

Ian Gibson (Labour, Norwich North)

That may be so, but in my conversation with them I made it clear that I had not seen that document. They may have sent it, and these things happen now and again. The hon. Gentleman is in a difficult position if it is seen that he may be a lobbyist, rather than a full member of the Committee. I will be watching carefully throughout our proceedings to see whether the individual views of scientists or others are available to all hon. Member, in terms of the whole context of what they have given to him.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I object to that. If the hon. Gentleman used the term lobbyist as a smear, I object to it, and I object to the assertion that when I and, for that matter, Lord Patel and Lord Turnberg meet any scientist to express concerns about the Bill, we are somehow not doing our job. It is reasonable to do that and we have been diverted in a peculiar way, Mr. Hood. I am happy to hand the hon. Gentleman a copy of the e-mail that was sent to me by Alison Murdoch last night.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I am sure that the hon. Gentleman will get back to the debate.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am keen to do so, but I thought it was right to defend the normal activities of Opposition Members. For 10 years I have been meeting people who are concerned about legislation, and I will continue to do so despite the hon. Gentleman’s admonitions.

I want to make two points on the Government’s provisions. Am I correct in understanding that amendment No. 45 does two things, which are brought together in one amendment because proposed new (h) follows on from proposed new paragraph (g)? New paragraph (g) is an important amendment because it makes it clear that the disclosure that would not be permitted is where any individual can be identified from the information, rather than a disclosure whereby no individual to whom the information relates could be identified. That is a separate and helpful amendment, and proposed new paragraph (h) is much more in keeping with the rest of the amendments. They are simply brought together by a good fortune of drafting, that (h) follows (g).

I understand the Minister’s specific point about getting general consent at the beginning. I think that the problem is merely one of interpretation by the HFEA, and what she said will be helpful. In normal clinical practice, information is not divulged without consent; it is divulged with implied consent. When people see a GP they do not have to sign anything to say, “You have my permission to send the information on to a consultant”, because when someone seeks a referral from a GP, it is implied that that information will be transmitted. When the medical or surgical team want to write to GPs to explain that someone is in hospital and has received treatment, that is not done without consent, because it is implied.

Dawn Primarolo (Labour, Bristol South)

I hope that the hon. Gentleman forgives me, but I forgot to cover that point. I absolutely accept what he says about data protection and general confidentiality, but I remind him that the EU tissues and cell directive sets standards of safety and quality for human tissue intended for human application, which includes areas that we are discussing, and goes further than the Data Protection Act. When I alluded to other legislation that would impinge on confidentiality, I had not meant to be more specific than that. It explains why there is a higher hurdle.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister has no need to apologise, because I assumed that that was what she meant, and I was going to raise that in my points at the beginning. I thought, given what she had said previously, that I would not raise it in advance. I have a question about it, so it is useful that she has raised it.

Coming back to what I was saying, there is implied consent; treatment is not done without consent. Because of the nature of this treatment, and because of the complication of identifying donor information, there needs to be a process. Otherwise relying on implied consent can lead people to fall into traps of not knowing where the division goes. I understand the reason why there is a need for an explicit or written consent. Consent is a process, and written consent is a sign that there has been a process and it is useful. However, there is a problem with interpretation by the HFEA, because clinicians tell me—I believe that this is on the record in the House of Lords debates as well—that they are required, or feel that they are required, by the HFEA, whether in their code of practice, in their inspection system or by some other means, to get a consent form filled in for every visit, every procedure and every test, even when the general consent form has been filled in at the beginning.

There may be scope here not for legislation, but for it to be made clear to the authority, which may feel that it is doing its job and playing safe, that the requirements of the tissues and cells directive, 2004/23 EC, particularly article 14, can be met by a written general consent at the beginning, and that specific consent is unnecessary as long as patients are made aware that they can at any point change the terms of that consent. That should be straightforward to do, and specific requests can be made for certain information not to be provided. I think that requiring a form each time is unnecessary.

I am hoping that the Minister can assure me that the extra requirements created by the directive would not prevent a general consent at the beginning as long as the patient knows that.

Dawn Primarolo (Labour, Bristol South)

I am happy to confirm that to the hon. Gentleman. When we were discussing consent at the beginning of our proceedings, we noted that discussions are taking place between the Department and the HFEA, and the HFEA is considering the whole question of consent, the exceptions, and how it is provided. That point might have been raised by the hon. Gentleman. Some of the things that he is saying now would need to be clarified within that discussion. The HFEA would need to take forward those discussions and the support and advice given to clinics.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is good news indeed. The Government amendments are an improvement on the existing situation. Using the Minister’s words today—I hope that I have got this right—a general, specific consent at the beginning does not have to be augmented, although it can be resiled from at any point by a patient; they must have the right to change their mind in respect of future disclosures or for new treatments.

Dawn Primarolo (Labour, Bristol South)

Just to put a qualification in there: of course, that should be within the limitations of the 1990 Act. It is about identifying and non-identifying information about the donor. For example, the identifying information cannot be made available until the child reaches 18; that cannot be the case, and nobody can vary that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I completely accept that, and I have had no representations from clinicians questioning the need for such clear separation. They understood that part of being licensed was to understand the sensitivity of that. I welcome the fact that there are ongoing discussions and note that the Government amendments are an improvement. It should be possible to reduce the pressure. The criminal offence worries clinicians, and perhaps they are also playing safe. If the HFEA could make it clear that if they fulfil certain requirements—particularly for patients who give the general consent at the beginning that is not retracted at some point—it should be reasonable.

The only other point to bear in mind is that there is a continuing concern about the differentiation between licensed and non-licensed individuals, licensed and non-licensed treatments, licensed clinics and non-licensed premises. Some of that is inevitable. We cannot have a licence and say that there should not be a difference. The fact that one has to have a licence is because there is a difference, and that creates a difference. The Minister should have a discussion with the HFEA—I emphasise that for the columns of Hansard—about making sure that there is not what seems to be an unfair burden on someone doing normal work who happens to be licensed, or on someone doing work that could take place in an unlicensed place, but who happens to have a licence because they do other work. If it can be shown that they are not unfairly at risk, or facing unfair or unreasonable burdens, people will welcome the progress made, both in the legislation and in our debates.

Mark Simmonds (Conservative, Boston and Skegness)

I thank the Minister for her response to my amendments and for her explanation of the Government amendments.

I accept what the Minister says about amendment No. 37. The list is clearly comprehensive and well thought through. It is correct that if there are to be regulations, or there is a necessity for them, they are subject to the affirmative procedure so that they have to be discussed in Parliament. Everyone on the Committee wants to see the Bill, when it becomes an Act, to last effectively at least as long as its predecessor, the 1990 Act. That is the whole purpose, so regulations can keep up to date with scientific advances as the years go by.

On amendment No. 38, again I thank the Minister. I understand what she says. It is right that there is general consent at the beginning of treatment, within the limitations of the Act, but she seemed to suggest that there was an ability for conditional consent—for information to be passed on. Her example was if the GP might be a family member. Is the Minister saying that exclusions can be specified on the consent form about whom is not able to receive that information, or, as I suspected originally, will there be generic consent?

On the implied consent argument and the exchange that has just taken place between the Minister and the hon. Member for Oxford, West and Abingdon, it is quite right that there is a higher hurdle when we are talking about such issues, as well as about human tissues. I am pleased that there are ongoing discussions with the HFEA and licensed premises, because I am concerned, like the hon. Member for Oxford, West and Abingdon, about the potential to put unreasonable bureaucratic burdens on licensed premises. I hope that those ongoing discussions will facilitate such a situation not occurring.

With regard to the Government amendments, I have one question for the Minister relating to amendment No. 54, which I am not clear about. Proposed new subsection (3) of that amendment reads:

“Consent in respect of a person who has not attained the age of 18 years”—

referred to in the amendment as “C”—

“may be given...by C, in a case where C is competent to deal with the issue of consent”.

If I read that correctly, that implies that someone below the age of 18 could give consent. How young could that person be to give consent? Would they have to be above the age of 16 but below 18? Could they be 12? Could they be eight? There does not seem to be any clarification elsewhere in the Bill or anywhere in the group of amendments.

Dawn Primarolo (Labour, Bristol South)

The hon. Member for Boston and Skegness asked about consent. What I described as general consent is the position that all the consent works from for disclosure of information. The patient is able to put exceptions into that. If the hon. Gentleman recalls the exchange between myself and my right hon. Friend the Member for Coatbridge, Chryston and Bellshill in last Thursday’s sitting, my right hon. Friend said that he might be prepared to give consent for certain types of research, but that he would want to make exceptions in other areas. We were talking about cases in which the donor was deceased. However, that starts from a general consent in which patients have the option to put in exceptions.

Although we are talking about general consent, patients should have the ability to make explicit exceptions to their consent for the disclosure of that information if those exceptions are not overridden by any of the other exceptions. It would be much too complex to have the two consents working in different ways against different principles. I understand that matters would proceed in very much the same way, but it is crucial that the HFEA examines the issue very carefully when it takes on new considerations of consent. There will clearly be active discussion of those particular considerations with stakeholders and the individuals and organisations that have made representations on this part of the Bill. I hope that I have made clear how the process will operate.

The other question that the hon. Member for Boston and Skegness asked was how old a person needed to be for the purposes of consent. The system does not work on the basis of age, but on whether an individual has sufficient understanding of the implications of the decision. That is obviously a fine judgment that needs to be made. I do not think that we can take that away from clinicians because individuals vary in their understanding. That is why there is not a specific age. I do not think that that is at odds with how we test competency elsewhere. Everybody has to be satisfied that an individual understands the implications.

The hon. Member for Oxford, West and Abingdon asked me a question about Government amendment No. 45, and I think that I answered it. The amendment specifically ensures that the provisions cannot be used to require the HFEA to disclose identifying information about donors for which specific provision is made elsewhere in the 1990 Act and the Bill. The amendment is constraining in that it reflects the wish to keep the measure very tight to the specific purpose. It was a result of clarification and tidying up following the very extensive debate on these measures that was held in another place.

I think that I have answered all of the questions that I was asked. If I have not, the hon. Gentleman needs to say now. I hope that the Committee will support the Government amendments, which I shall move formally at the appropriate time.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for that clarification. On the basis of her response both to my questions and to the amendments that I have tabled, I beg to ask leave to withdraw the amendment.

Clause 26

Mark Simmonds (Conservative, Boston and Skegness)

There may be a logical reason for it, but why is such a clause placed at this part of the Bill and not sequential to clause 3, because that was when we discussed mitochondrial donors? It does not seem to fit here.

I want to ensure that I, as well as other members of the Committee, understand the clause correctly. It deals with proposed new sections 31ZA to 31ZE. Will the Minister confirm that that means that the offspring has the right to find out about the mitochondrial donor and the donor’s children? Does the mitochondrial donor have the right to find out about the ensuing offspring, despite the fact that only 0.5 per cent. of their genetic material is in the child and does not have any defining characteristics whatever?

Dawn Primarolo (Labour, Bristol South)

I can answer the second question; I do not know about the first. The hon. Gentleman might recall that we had an extensive discussion on the right to know and information about mitochondrial donations. The hon. Member for Oxford, West and Abingdon asked whether there would really be a need for the mitochondrial donor to be identified. We agreed at the time that, because regulations are connected with such information, such issues were exactly the type that would need to be consulted on, and that the regulations would need to be seen in draft.

Mark Simmonds (Conservative, Boston and Skegness)

I have a clear recollection of that discussion, but my reading of the Bill is that proposed sections 31ZA to 31ZE give the offspring the right to find out about the mitochondrial donor and the donor’s children. The Minister is suggesting that that is not the case and that, subject to consultation, such matters will be dealt with in subsequent regulations. I accept that I might have misinterpreted the Bill, but I should be grateful if she could clarify matters.

Dawn Primarolo (Labour, Bristol South)

I can clarify that that is the case. The regulations deal with that entire part, so it will be possible to take it forward. The requirement is not linked.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Proposed new section 35A(1) states that regulations

“may provide for any of the relevant provisions”,

and the hon. Gentleman has described some of the provisions. As I have said, I am dubious whether a system needs to be set up for a healthy child who has no relevant genetic parentage—in my opinion—to be invited to consult a register and so on. Arguably, it is part of the private medical history of the parent even though it impacts on the child, but children do not have the right to know that their mothers had tubal surgery, for example. Such matters will need to be debated before regulations emerge.

Dawn Primarolo (Labour, Bristol South)

I absolutely agree. When the hon. Gentleman made that point, with justifications that he felt supported that view on access to information, he put it clearly. At the time I also said that in my view—this is certainly provided for as regards regulations—the issue is a matter for debate and consultation, which would need to take place before the regulations are drafted. There would then be consultation on the draft regulations before they went through the affirmative procedure in both Houses.

The measure appears where it does in the Bill because it contains regulation-making powers, and they tend to be placed at the back of an Act, in relation to the points that they connect to, so it is about drafting legislation. I say in all honesty to the hon. Member for Boston and Skegness that that is the advice from advisers, parliamentary counsel and all those who regularly write legislation. I tend to worry about the bigger issues of principle, rather than the consequential sequencing of the clauses. I hope he accepts that.

Clause 27

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 155, in clause 27, page 31, line 13, leave out ‘revocation or’.

This is a probing amendment to elicit from the Minister an explanation of why the authority has the power to charge for a revocation of a licence, and what happens in circumstances where the licensee who has had his or her licence revoked refuses to pay, or their business is wound up and no longer exists. Is it right that the licence is revoked at the discretion of the authority and that therefore the licensee is charged—the authority can both revoke the licence and make a charge—particularly since the Bill does not state that the charge may only cover costs and not generate revenue for the authority?

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman raised points earlier about the responsible person if a licence were revoked or a request to revoke a licence were made by the clinic. He made specific reference to the provisions for patients who might already be having treatment, and to ensuring that the storage of embryos, material and information is done in the proper way. I made it clear to him that those matters were requirements of the licence. The payment of the fee is to ensure that those arrangements can be made, and it may be that it is transferred to another clinic for treatment, for instance, or for maintenance.

The circumstances for a clinic that was closing down and submitted that it wished to have its licence revoked would be rather different to cases where the HFEA was revoking a licence for its own reasons, but none the less, administrative expenses would occur both for the HFEA and for patients going to other areas. It is not about income generation for the HFEA. As was said in our earlier discussion about fees charged by the HFEA, it may charge a fee, but it does not have to do so. Specific provision is not made in the Bill for such charges, but it is envisaged that they would be covered, because there would be consequential expenses. I assure the hon. Gentleman that it is not about income generation for the authority. I hope that that covers his questions.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful for the Minister’s clarification that total revocation of the licence and charges related to that are not temporarily—essentially—income generating. Has any thought been given to a charge that might have been made to a licence holder who has had the licence revoked and who refuses to pay? Would that bar, for example, somebody from getting a licence in the future?

Dawn Primarolo (Labour, Bristol South)

That would clearly reflect on the responsible person, and whether they were responsible enough to have a future licence, bearing in mind how they discharged their responsibilities for a licence that they no longer have. Either they revoked it themselves by wishing to withdraw from the licence, or the HFEA revoked it because of breach of licence. It comes back to that debate about responsible people.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful for that intervention, and I certainly do not wish to push amendment No. 155 to a vote. On that basis, I beg to ask leave to withdraw the amendment.

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 156, in clause 27, page 31, line 26, at end insert

‘set out in regulations laid in draft before and approved by a resolution of each House of Parliament.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 157, in clause 27, page 31, line 38, leave out ‘may’ and insert ‘must’.

Mark Simmonds (Conservative, Boston and Skegness)

The amendments relate again to the fees that the HFEA can charge. I will detail what they would do, and then I want to talk a little more, if I may, Mr. Hood, and ask the Minister to provide information about the charging structure and the HFEA’s fees.

The Bill as drafted allows for the fees to be fixed by the authority with the approval of the Secretary of State and the Treasury. Amendment No. 156 would ensure that the fee is fixed in Parliament through regulations, which would go some way to ensuring that the fee is fair and proportionate and would not necessarily be passed on disproportionately to the patients by the clinics. The Minister will be aware of the enormous concern about that within both main political parties.

On amendment No. 157, the Bill as drafted says that any fee charged for the provision of information about genetic offspring, siblings or a potential partner, may have regard to the costs incurred, which clearly also implies that it may not have regard to the costs incurred. The amendment would change that “may” to “must”, which would therefore mean that fee charging must not be a revenue-raising exercise. I was grateful for the Minister’s confirmation that the fees charged for the revocation of a licence would not be a revenue-raising exercise and that the charges must be in direct proportion to the costs incurred in providing that information. The amendment would ensure that the fee charged is proportionate to the costs incurred in obtaining and providing that information.

With your permission, Mr. Hood, I would like to broaden the debate in terms of the charging structure of the HFEA, which relates to the amendments. I should like to elicit from the Minister some of the—

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I must ask the hon. Gentleman not to go there. He may want to raise those points in our debate on clause stand part, but not in relation to the amendments.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful for that advice, Mr. Hood, and I look forward to catching your eye then.

Robert Key (Conservative, Salisbury)

It is a pleasure to serve under your chairmanship, Mr. Hood. I support amendment No. 156, and if this Bill is sublime, then I should like to introduce the Committee to the ridiculous. First, I want to consider the principle behind the charging regime.

Several years ago, on behalf of a constituent, I challenged the HFEA on the fees that it was charging for in vitro fertilisation treatment, and I was told that the Treasury insists on the fees being charged. Indeed, clause 27 inserts proposed new section 35B(2), which, as my hon. Friend said, gives the Treasury the final word on these fees.

The Treasury does not object to NHS dentists charging for certain procedures and contraptions, and it seems that it does not object to NHS eye tests that result in contact lenses being purchased by patients. On the other hand, the NHS does not allow people to buy drugs that have not been approved for NHS use by the National Institute for Health and Clinical Excellence. It says—entirely out of spite, it seems—that the whole course of treatment might be jeopardised if additional drugs are purchased. The Department of Health therefore seems to be in a complete muddle about charging structures.

On my second point, proposed new section 35B(5) says:

“the Authority may have regard to the costs incurred”.

It is often said that this is all about legal fees, which might be huge. However, if legal fees are incurred in the health service—for example because an orthopaedic procedure goes wrong and results in litigation—the hospital or department concerned does not have to pay the legal costs involved in meeting that challenge. How, therefore, can it be justified to reflect legal costs in the fees charged to clients and patients under the HFEA regime?

Proposed new section 35B(6) says that the HFEA

“may fix different fees for different circumstances.”

Will the Minister clarify that? Does that mean that the authority can charge different fees for the same HFEA functions under different circumstances? If so, who will make the decision? What will the criteria be? Will the Minister give us examples of what is meant by new section 35B(6)?

How are our constituents affected by this regime? The cost of each IVF cycle to our constituents is about £3,500 for fresh gametes and £1,000 for frozen gametes.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I think that the hon. Gentleman is going a wee bit away from the amendment. Again, the issue could be raised in the clause stand part debate, not on this group of amendments.

Robert Key (Conservative, Salisbury)

I obviously have to accept your ruling, Mr. Hood, but I am talking very specifically to amendment No. 156. May I please proceed?

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I tell the hon. Gentleman that clause 6 is not being amended, but he is speaking to it as if it is.

Robert Key (Conservative, Salisbury)

Mr. Hood, I am talking about amendment No. 156 to clause 27, which was moved by my hon. Friend the Member for Boston and Skegness.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. My guidance to the hon. Gentleman is to look to the clause stand part debate and to speak specifically to the amendment. That is in line with my earlier advice to the hon. Member for Boston and Skegness.

Robert Key (Conservative, Salisbury)

Of course, I accept your ruling, Mr. Hood. If I may, I will speak to clause 27, page 31, line 26—to amendment No. 156.

On the fees that are charged for cycles, NHS trusts will not pay for frozen cycles, and I wonder who made that ruling. An application for a separate licence must be made for each and every cycle, and that must be granted by the HFEA. The authority charges £104.50 per licence. That means that the Salisbury fertility clinic, which treats about 200 patients a year with fresh or frozen cycles, pays about £200,000 a year in fees. There are more than 100 IVF clinics in the UK, so our constituents pay about £2 million a year.

Mark Simmonds (Conservative, Boston and Skegness)

It might help my hon. Friend if I give him the exact figures. In the 2006-07 financial year, HFEA income was £6.7 million, of which grant aid—I assume that it came from the Department of Health—was £1.95 million. That means that the authority got £4.8 million in fee income from our constituents.

Robert Key (Conservative, Salisbury)

That is absolutely right. The IVF cycles paid for by our constituents represent a significant proportion of that income.

The proportion of private and NHS patients being charged is about half and half. In half the cases, therefore, the HFEA fee is paid by the patients, while in the other half, it is paid by the primary care trusts. However, the primary care trusts are simply transferring money from one part of the NHS to the other, with all the concomitant bureaucracy involved in the procedure. That, in itself, must cost a substantial amount.

There is another unfairness for our constituents in the charging structure. If, in an IVF cycle, there were some spare gametes for a patient, some of them would routinely be frozen in case they were needed in the event of failure. If the fresh cycle fails, believe it or not a new licence costing another £104.50 has to be applied for and granted—for the same gametes. The patient is therefore paying twice yet the clinic incurs no extra cost, apart from the cost of the storage of spare gametes. How can the whole bureaucracy and fee structure be justified for what is now a routine procedure?

Mark Simmonds (Conservative, Boston and Skegness)

Is my hon. Friend aware that financial implications arise from the Bill? He has suggested that the expectations of increased expenditure by the HFEA will be met not by additional resources from the Department of Health, but only by additional fees being charged.

Robert Key (Conservative, Salisbury)

I detect the dead hand of the Treasury intruding once again into the personal lives of our constituents. I entirely support my hon. Friend’s amendment. On behalf of our constituents, it should be Parliament, not the Treasury, that decides whether the charging regime is justified.

Dawn Primarolo (Labour, Bristol South)

I wish to explain what actually happens and why, rather than there being a dastardly plot set up by the Treasury.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order.

Dawn Primarolo (Labour, Bristol South)

It is a little strange that Conservative Members wanted the regulation that was accepted when the 1990 legislation went through under their Government, whereby there should be a fee structure to recoup the costs of the regulation, yet they now consider that that principle should be broken in respect of what the fees are charged for and how they are arrived at.

Amendment No. 156 would provide for the fees to be set out in regulations to be approved by both Houses. The HFEA undertakes consultation on its fee scheme and levels involving the public and stakeholders. That is similar to provisions under the 1990 Act. The Bill provides that the HFEA can set its fees in accordance with the scheme approved by the Secretary of State and the Treasury, and I see no reason to change that. At present, the HFEA makes a recommendation, having discussed with stakeholders what they believe the fee levels should be. A review is undertaken every two years, and it is not the case that fees always increase.

This is not about the Treasury saying what will be charged, but the HFEA asking for endorsement. That ties in with the fact that the HFEA is a quasi-independent body. We made the important decision recommended by the Warnock report so that matters relating to the function of the authority, including how it carries out its functions in respect of fees, are properly the business of the authority to determine and justify. That was where the authority was in 1990. That was recommended in the discussions on the independence of the HFEA in discharging its regulatory functions as determined by Parliament, and the fees are about recouping its costs.

Robert Key (Conservative, Salisbury)

Will the Minister give way?

Dawn Primarolo (Labour, Bristol South)

I am happy to give way. I will answer in detail the points that the hon. Gentleman has already made. I accept that he has changed his mind since 1990, but the Government have not.

Robert Key (Conservative, Salisbury)

Eighteen years ago, when the Minister and I were fresh young things on the Standing Committee that considered the 1990 Bill, the HFEA was a new institution and nobody knew how much it would cost to run. The procedures for IVF were novel and nobody knew how they would be taken up or what that would cost the NHS. Caution, therefore, was entirely sensible. The point that I have already made, which the Minister has failed to acknowledge, is that these are now routine procedures and routine parts of NHS performance, and that we need to change our minds. Parliament needs to change its mind. We no longer insist on people walking in front of cars with red flags, and we should not insist on this charging regime.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. That was a rather long intervention.

Dawn Primarolo (Labour, Bristol South)

I understand the hon. Gentleman’s point. We continue to regulate the system. Some argue that there should be no regulation on IVF because it is so mainstream. They say that we should not have the regulation that is provided in the Bill and that the matter should be removed entirely from the auspices of the HFEA. However, that is not the view endorsed by Parliament, nor is it the view of the Government. The HFEA’s independence would be eroded and undermined by the amendment, yet it has to have independence. The other question is where we would draw the line on the HFEA’s independence. Would we allow it to determine its own procedures for using its regulation powers, regulating according to the wishes of Parliament, and the costs for that? It may also be considered that removing from the authority the responsibility for setting such procedures will work against better regulation. We need to ensure that the authority has an incentive to reduce the regulatory burden and improve its procedures, that it regulates according to the wishes of Parliament and that it does so in dialogue with its stakeholders, and takes into consideration what they think. The first implication of amendment No. 156 is that it should not be the function of the HFEA to set its own fees. That is something with which the Government and I do not agree. It is appropriate that the HFEA seeks to recoup the cost of regulating clinics.

Other costs that the HFEA might incur, such as legal fees, are met by the Department as part of the HFEA’s grant. Members of this Committee and of the House expect the Government to be concerned to ensure that the HFEA is fulfilling its functions in an efficient and cost-effective way. That would always be part of the discussions about the rest of the running, not the regulation of the licences.

I hear what the hon. Member for Salisbury says about the level of fees, but I think that that is a separate issue. It is entirely appropriate that the HFEA intends to review its fee structure as part of the major project to consider how it operates and how it is undertaking its role. It must take into consideration the implications of the Bill, when it is approved by Parliament, and reflect on the points made by the hon. Member for Salisbury—whether it is timely to revisit when fees are applied, at what level and for what purpose.

I remind the Committee that the fees are paid by clinics and research centres towards the HFEA’s operating costs, including the continuing work to improve and strengthen regulation. The fees cover, for example, the cost of licensing and inspecting clinics to ensure that they are complying with the HFEA code. The authority reviews its fees annually and makes a recommendation to the Secretary of State, who agrees them. They are approved by the Treasury as well. As I said, they are not increased every year.

The current fees were referred to by the hon. Member for Salisbury, so I do not need to touch on them. The fees paid for costs depend on the type of treatment carried out or the complexity of the research, but, as I said, the HFEA is reviewing its fee structure. It is important that there is transparency on the level of the fees, why they are set at those levels, the costs that they are intended to cover, and that everyone understands that clearly. I do not accept that amendment No. 156 would improve how fees are set or take us any further forward. In fact, it would be in danger of questioning the independence of the HFEA.

Amendment No. 157 relates to the authority’s ability to charge a fee to people making an application for information from the register or for providing the information. Clause 27 is intended to enable the HFEA only to cover the costs of doing so and, as I have said repeatedly when the question of HFEA fees has been raised in Committee, it is not about income generation. The effect of amendment No. 157 would be that the authority “must”, rather than “may”, have regard to the costs incurred by it when dealing with an application or the provision of information about genetic parentage. On a straightforward technical point, the use of “may” is common in legal drafting and is appropriate in cases in which there is no obligation. That is clearly the point that we are trying to get across. The HFEA does not necessarily have to charge a fee for requests for such information as are proposed, and therefore “may” is entirely appropriate in such circumstances.

While I understand the points made by the hon. Members for Boston and Skegness and for Salisbury, and the force with they are making them, I hope that they agree that a more sensible way to proceed would be to allow the HFEA to continue to be accountable, to review its fees, to be in discussion with its stakeholders and then to make recommendations to the Secretary of State and the Treasury for approval, once those increases, decreases or no increase are decided. If the authority does that annually, it is entirely appropriate for that to continue. If the hon. Member for Boston and Skegness feels that he needs to press his amendment to a Division on that principle, I will ask my hon. Friends to resist it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Since there may well be a vote on the amendment, I ought to say one or two paragraphs on it. The Minister is absolutely right that if we believe that IVF has to be regulated, there must be fees to pay for it—that is if we agree that the regulator should be funded at least partly by the people whom it regulates, which is a common model.

I have long argued a point that I think the Select Committee report of 2005 made: now that we are 15 years on from the halcyon days of the fresh youth described by the hon. Member for Salisbury—perhaps others might argue that he and the Minister are still both fresh young things—IVF is just as routine, after the initial concerns about safety, as some unlicensed treatments involving drugs and surgery. Although there is an ongoing requirement of registration for the purposes of donor information and so on, I hope that it will be accepted that there is an argument for deregulation. That does not mean that there does not need to be quality assurance by the Healthcare Commission, involvement by the General Medical Council, or even close scrutiny of claimed success rates, because IVF is relevant to a particularly desperate population. However, should that mean licensing every routine IVF cycle? No, although I would still argue that some of the newer approaches should be licensed and that there should be no diminution of the regulation of research.

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman is making a respectable case for having no regulation. I do not happen to agree with him, but surely the hon. Members for Boston and Skegness and for Salisbury need to address the point that the principle of regulation is that its costs are recouped from those who are regulated. That has been an absolute principle of all the relevant legislation since 1990. Not liking the fees is one thing, but a case has not been made for why we should deviate from the principle of regulation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I made that point at the beginning. If we believe that IVF should be regulated, we must have a way of paying for it. I am making the point that it should be deregulated. However, given that there is regulation, and that the Select Committee did not win the argument on that point, the Government’s structure is a reasonable approach. That is the only reason why I do not plan to support the amendment. A better approach would be to deregulate. Although there will, of course, be sensitive issues and a need for special provisions when we discuss the next Bill, I hope that this medical treatment, which is now routine and, as far as we know, safe—no less safe than many other medical treatments—will be deregulated.

Mark Simmonds (Conservative, Boston and Skegness)

I am delighted that the amendments have stimulated such a detailed and comprehensive discussion. As my hon. Friend the Member for Salisbury said, there is concern about the issue and the possibility of fees being charged that will impinge on all our constituents.

The point of amendment No. 156 is not to remove the independence of the HFEA but to ensure that there is sufficient scrutiny by those who represent constituents, on whom the level of fees will have an impact. The Minister is not correct to say—I may have misheard her—that all HFEA income is recouped through recharging. It is not. There is a grant aid system, which pays some of the cost. There is no doubt that the Bill has the potential to increase the HFEA’s level of activity and its size. My understanding is that there is no proposal to increase the grant aid from the Department of Health, so the additional income will come from the charging of additional fees.

Of course, I acknowledge that while the Minister is in situ, she will consult the Secretary of State and the Treasury and will not allow the fees to be a revenue-generating exercise, but that may not always be the case. If I were a Minister rather than a shadow Minister, I would ensure that they only covered the costs rather than raised revenue. We must ensure that that happens as part of the Bill, because the 1990 Act, which we are amending, has been in place for 18 years, and we hope that this Bill will be as well. I do not think that the HFEA would have a rigorous and detailed charging regime imposed on it by Parliament, but is right that the HFEA should come to Parliament to justify its fees and the impact that they would have.

If I withdrew the amendment, it would be with some reluctance, so I am not going to do so.

Mark Simmonds (Conservative, Boston and Skegness)

Just for clarification, do I need to withdraw amendment No. 157 formally?

Jimmy Hood (Labour, Lanark and Hamilton East)

It is deemed as having been withdrawn.

Mark Simmonds (Conservative, Boston and Skegness)

I do not wish to detain the Committee by getting the Minister to tell us verbally what the answers are, but it would help if she could furnish the Committee with the relevant information. Clearly, as we have said, there is concern about the HFEA charging regime and how it might grow. I imagine that people in the HFEA have done projections for the next three years about how they imagine the fee income will grow, how they imagine their expenditure and cost base will expand, and what those additional costs and expenditures will be spent on. Will the Minister put that information in the public domain, because financial implications clearly arise from the changes proposed in the Bill—particularly if birth registration is changed. As the HFEA grows in its remit, the expectation is that increasing expenditure will be met by fee income. It would be helpful if the Minister could write a letter to members of the Committee or place something in the House of Commons Library on that matter. Doing so would ensure that both the Committee and the wider public have detailed financial information about the proposals on the financing of the HFEA.

Dawn Primarolo (Labour, Bristol South)

I am not quite sure how I can help the hon. Gentleman any further than I already have. The agreements in terms of finances for the HFEA are subject to public scrutiny through the information that it provides. I have said that the HFEA will consult on the level of fees. In addition, the Department would expect the enactment of the Bill to result in the HFEA reflecting on its future requirements and submitting a business case to us on the additional grant aid it might need to deal with the Bill’s implications. A letter would say no more than that until the Government are in a position to say more publicly, because all these matters are about to be consulted on. The fees and the future liabilities will need to be considered in the context of the Bill, which is not yet an Act.

I hear what the hon. Gentleman is saying and I will keep him informed of developments once the Bill is enacted. Until then, I am not able to say a great deal more because the HFEA will have to reflect on the matter.

Clause 28

Mark Simmonds (Conservative, Boston and Skegness)

Will the Minister help the Committee by saying how many times the powers of entry, search and seizure under warrant have been used between 1990 and the present time, and how many times they have resulted in prosecutions, if any? I think that the powers were granted under section 38 of the 1990 Act.

My understanding is that the clause allows for members of the authority to be in possession of embryos, gametes or human admixed embryos in the course of their employment. I just wondered what that means. Does it mean that members of the authority are allowed to seize embryos, gametes or human admixed embryos from licensed premises as part of their employment or that they can hold them separately in a different function? Will the Minister also confirm that this is only the case if the cells have been seized?

It would also be helpful if the Minister explained, in the context of the clause, the procedure for informing donors and owners of these embryos and gametes that they have been seized, and if she described the methods and places for their storage to prevent degeneration and loss. As well as seizing property, gametes and embryos from licensed premises, can the authority take control of a facility where it believes somebody has broken the clauses of the licence?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I want to raise the unfortunate recent case of Dr. Taranissi’s clinic and the HFEA. My understanding of the clause and new schedule 3B is that this is a significant move. It must be done carefully and not carelessly. In the Taranissi case, the appropriate steps were not taken when a sudden inspection entry involving search and seizure took place. It was unfortunate that it happened with television cameras from “Panorama” present down the street.

I am sure the Minister would agree that the clause covers a serious business and that inspections should not be carried out for the implied benefit of the media. The HFEA, which gets a lot of unfair criticism, should not be using its powers to have a public relations exercise to show “Panorama”, the BBC or any other broadcaster or media that it is being tough. The powers that it has speak for themselves. Implemented responsibly, they can do the job. I hope that the Committee agrees that there should be no repetition of that media circus in these matters. The HFEA was in court and had to settle a significant sum of money at the public expense for using the powers inappropriately.

Dawn Primarolo (Labour, Bristol South)

Two sets of questions have been raised. The hon. Gentleman raised the Taranissi case and whether the current powers are being used correctly. The hon. Member for Boston and Skegness asked for clarification.

It is clearly not appropriate for me to comment on the case to which the hon. Member for Oxford, West and Abingdon referred. He speculates—I put it delicately—as have others, as to whether the powers of the HFEA, which I think he accepts are appropriate in the circumstances, were used appropriately in that case. That continues to be debated. The hon. Gentleman does not raise questions about the inappropriateness of the 1990 Act, as amended by this Bill, but he does raise issues that the HFEA needs to reflect on. The HFEA is following these proceedings carefully, and I am sure that it will note the points raised.

The requirement to inspect licensed premises at least every two years was set out in regulations under a European Union directive. Previously, the 1990 Act had provided for inspection every year, although that requirement could be waived by a licence committee, if the authority considered an inspection in that year to be unnecessary. All this clause does is bring those requirements for inspection, entry, search and seizure in line with the changes that the Bill makes regarding electronic records. It means that there is a regulating power to ensure that the legislation is future-proof. That power will enable the Secretary of State to specify what information should be contained in the appropriate statement given to a person on the premises during the execution of a warrant. The requirements and what actually happens are not being varied from the principle.

The hon. Member for Boston and Skegness asked for details of specific seizures or cases—how many times and where. I cannot remember what time period he asked about. I am afraid that I will have to write to the Committee with those statistics, as I do not have them to hand. He then asked what the possession of gametes means. It means that in the course of duty, HFEA staff could seize embryos but would not be exempt from needing a licence in other circumstances. As I tried to explain, we are bringing the new provisions in line with the existing framework.

The hon. Member for Oxford, West and Abingdon raised questions on a particular case, and while it is entirely inappropriate for me to comment on it, I will perhaps see, having consulted the HFEA, whether I can put in writing to the Committee something helpful with regard to the interpretation of its powers.

Schedule 5

Mark Simmonds (Conservative, Boston and Skegness)

I have a couple of questions about the schedule, which provides detail on inspection, entry, search and seizure. First, are the premises searched and the dates on which they are searched publicised? Is it public information? Is compensation paid if search and seizure has taken place but there was no prosecution or variation in licence? That is one reason why I asked a little earlier—a question that the Minister could not today answer—how many seizures have taken place since the 1990 Act came into force.

Secondly, how much notice, if any, needs to be given for entry under the schedule, or is it merely random, with those doing the inspection turning up as and when they see fit? Indeed, it may be sensible for someone to be there to demonstrate that there is nothing wrong or untoward with the licence.

If my understanding is correct, provisions in earlier parts of the Bill allow third parties to be contracted by the HFEA to enter and inspect premises under the schedule. Will permission need to be granted by the authority for those arm’s length bodies to undertake that work in individual cases, or will it be a block contract, with the bodies inspecting on behalf of the HFEA acting on their own discretion?

The Minister answered my question about two years, but I want clarification of a further matter in relation to paragraph 7(1)(a) to proposed schedule 3B about seizure in the course of inspection. I am puzzled as to why the HFEA or a body acting on its behalf would want seize anything when granting a licence or varying a licence at the request of a person who already has one. I understand why seizure might be applicable in revocation or suspension cases, particularly if it is to be used for evidence for the proceedings detailed in paragraph 7(2) to proposed schedule 3B.

Dawn Primarolo (Labour, Bristol South)

We covered the question of qualified inspectors not directly employed by the HFEA in a previous debate, and what they would inspect—the laboratories and equipment, rather than some of the other issues. It would be necessary for that person to be a qualified inspector.

As for periods of inspection and notice of inspection, I do not have information to hand on that; it operates at present, and as far as I know we have not had any problems. However, if the evidence justifies it, we need to allow for spot inspections. I shall need to include that in the letter that I have written to the hon. Gentleman; it will be a subset. He asked whether details of seizures will be made public—perhaps on the HFEA website—and if there is no such obligation, why not. There may be some caveats, so I shall certainly write to him on that.

The last point raised by the hon. Gentleman was about compensation when a search has taken place. No provision has been made for compensation. The whole point is that those making inspections and seizures under the 1990 Act should act reasonably. That means within a certain time, and it also requires a reason for the inspection. All that would have to be demonstrated, and I will put that into the letter too.

This regime has worked well. The hon. Gentleman will need to be satisfied when I give him the details of how many revocations there have been and how many inspections have resulted in revocation, but I say to him that the whole point of the regime is that it does not need to be used often and in the period since 1990—apart from the required inspections—those spot inspections or seizures have not been used often. I hope that I will be able to reassure him and other members of the Committee on that in writing.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for that answer. Perhaps she could add to that list of paragraphs in the letter that she is going to write a brief explanation of the last point that I made regarding paragraph 7(1)(a). In other words, why is it necessary to have as grounds for the seizure the purposes of the authority’s functions relating to the granting or variation of a licence, which would include the variation of a licence at the behest of a licensee? I cannot think of any situation where anything would be seized in those circumstances.

Dawn Primarolo (Labour, Bristol South)

I am happy to confirm that I will address that point. I apologise for missing it.

Clause 29

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 173, in clause 29, page 33, line 20, 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.’.

This amendment, which deals with a potential new defence under the clause, is a probing one that tries to clarify what will happen in the new situation. The problem is caused by the new definition of an embryo, which clearly has been decided already during the procedure and has been debated in this Committee. It is now accepted that that issue will not be re-opened, and that an embryo is as defined at the beginning of the Bill, in clause 1. It must be recognised that that is a new definition that, from enactment, will capture issues that are not currently captured, and which are therefore not subject to regulation and do not require licences. As a consequence, the criminal law will be brought into new areas.

That creates a new problem: due to the nature of science, it is not entirely clear when something might be defined as an embryo under the Bill. We touched on that problem when we debated the clause in question, and following an exchange that I had with the Minister, it was covered in a letter that was sent to you, Mr. Hood, your co-Chairman and members of the Committee. That letter makes it clear that there is, as far as researchers are concerned, a particular problem.

I shall set out briefly the problem that might require defence. I draw attention to the fact that it was first raised in the House of Lords, following representations made in a briefing to all relevant peers by the Academy of Medical Sciences, the Medical Research Council, the Law Society, the Wellcome Trust and the Association of Medical Research Charities. That briefing set out the problem in relation to the amendment, which I have re-tabled to try to take the debate on. The briefing states:

“Embryos are broadly defined under the Bill to include ‘an egg that is in the process of fertilisation or is undergoing any other process capable of resulting in an embryo’. Gametes are also broadly defined to include germ line cells at any stage of maturity. Our understanding”—

that is, the scientists’ or science’s 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 currently known to be or destined to become germ line cells, or could carry out research on eggs that are (unknown to current science) capable of resulting in an embryo.”

The argument—the thrust of the amendment—is that it should be a defence for a researcher if they can prove that they reasonably believed that what they stored or were creating was not a gamete, embryo or interspecies embryo as defined in the Bill. Of course, the researcher would have to cease their activity, seek a licence or destroy the material as soon as it became reasonably clear that that was necessary.

There is an analogous defence in the Human Tissue Act 2004, which the Minister in the other place mentioned in the debate on the amendment. She said:

“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.”—[Official Report, House of Lords, 28 January 2008; Vol. 698, c. 469.]

That is true, but I do not believe that it answers my point. We are not talking about a defence based on ignorance of the law, and it is unfortunate that that did not come across clearly in the Lords debate. Unquestionably, researchers in the field know what the law is and that an embryo that is created—that outcome is likely or at least possible—predictably and reasonably comes under the Act. This is about the uncertainty of the law, not the science.

Clearly, such a defence was felt necessary for inclusion in the 2004 Act, which also dealt with sensitive matters. It therefore seems reasonable to include a similar, if narrower, defence in the Bill if we accept that there is a problem.

I should set out the circumstances in which such a defence could be required. Again, I am grateful to the Newcastle scientists for meeting me last night to provide me with more specific information. They said that several centres in the UK—the problem is not rare—are carrying out in vitro research on human eggs with the approval of a research ethics committee but not under an HFE licence, which is unnecessary because regulations under the HFEA exempt such research unless the eggs are fertilised or stimulated specifically to develop into an embryo. Lord Patel pointed that out in the Lords debate, and Mary Herbert, who is an expert in meiosis at the North East England Stem Cell Institute, has confirmed that although it is rare, the division of an egg cannot be ruled out because it may occur spontaneously and unexpectedly. There is no intention to create an embryo, but it is possible that any cultured egg may divide parthenogenetically; very occasionally—this is the point—the cell may continue to divide to a two-cell stage with a full set of chromosomes.

It is the view of those scientists and the Government that such an entity would be covered by the definition in clause 1. Therefore, an offence would in theory have been committed if such a thing occurs in an unlicensed laboratory. Will all research on eggs in vitro require a licence to avoid the problem? Are we unravelling the whole point of the regulations made under the 1990 Act shortly after it was passed that allowed gamete research to continue without a licence, as it does?

It is important to give one example of the work specifically concerning the investigation of the meiosis process, because it is ongoing. Meiosis is the division of chromosomes in the egg immediately before fertilisation, so that the number of chromosomes is reduced by half. Errors occurring during meiosis result in miscarriage and cause congenital abnormalities such as Down’s syndrome. The studies involve measuring proteins and other molecular signals within an egg as it undergoes meiosis. Research on how to store the eggs of young women to preserve their fertility before chemotherapy is another example.

In our exchange, which I shall not repeat, the Minister said that either embryos should be licensed or that the eggs that this might happen to should be destroyed, but her letter was clear. It is important that we recognise what it said. The Government’s letter to the Committee said that

“eggs can spontaneously activate and begin to divide without having been fertilised...It is highly unlikely that a human parthenote could implant and/or develop into a baby. However they do divide for several days in vitro allowing some research to be carried out on them.”

That would be research under a licence, because it would involve a parthenogenetic embryo. However:

“As well as occurring spontaneously, it is possible to stimulate parthenogenesis by exposing eggs to a specific chemical or by stimulating them with an electric shock.”

Again, that would require a licence under the Bill, which is fair enough, because one anticipates that that sort of thing will continue. The letter said that such embryos would be covered by the definition, and went on to say:

“As far as we understand, there are very few research projects involving human eggs which do not involve fertilisation of the eggs. The majority of research on eggs would involve creating an embryo, and therefore would require a license from the HFEA. However, we accept that where there was non-licensed research on eggs being carried out, there is a possibility that an egg may spontaneously begin to divide.

The Human Fertilisation and Embryology Act 1990 states that you cannot bring about the creation of an embryo in vitro without a license from the HFEA. Therefore, if a researcher were concerned that this might not be the case, they would need to obtain a license. The Bill does not change this position.”

I do not seek to argue with the letter; I am just setting it out to save time. The Bill changes the position. There was some doubt before, but now it is clear that spontaneous parthenogenesis, because it involves the creation of an embryo, albeit not deliberately, would require a licence. Is it the Department’s advice and the HFEA’s likely advice that anyone culturing eggs in vitro, even if there is no intention of stimulating them or creating embryos, will require a licence?

If that is the case, certainty is needed about it, or researchers may believe that even if it is not their intention, the research ethics committee does not feel that it is a possibility and they do not publish anything about parthenogenetic embryos, they may still be liable for a criminal offence. Although they may be able to “not have a problem”, as it were, now that the matter has been raised in the House of Lords and here, it is important to be absolutely clear for those researchers and to realise that there will be more research licences—and, pursuant to previous debates, more income for the HFEA—and an increase in regulation. I look forward to the Minister’s response.

Dawn Primarolo (Labour, Bristol South)

I find it somewhat difficult to accept that although the very best scientists in the world, at the forefront of this science, know exactly what to do in order to progress that science, the hon. Gentleman seeks none the less to move an amendment to give them the defence that they did not know that they were doing something that the legislation applied to. We need to be very clear, and being very clear about what the offence is means that the scientists concerned must know the exact parameters within which they are working. There should not be an ambiguous judgment to be made about what a particular scientist may or may not have known at the point when they breached the legislation. There is no defence in the 1990 Act—

(Except clauses 4, 11, 14 and 23, schedule 2, and any new clauses or new schedules relating to the termination of pregnancy by registered medical practitioners) - Clause 29

Dawn Primarolo (Labour, Bristol South)

Before we broke this morning I was responding to the amendment tabled by the hon. Member for Oxford, West and Abingdon about offences under the Human Fertilisation and Embryology Act 1990 and the Bill.

The 1990 Act makes it clear, as I said this morning, that it is an offence to store gametes, or to create, use or store an embryo, without a licence. The Bill introduces further offences relating to the creation without a licence of human admixed embryos, to come alongside the provisions that already exist. Those offences apply whether or not a person intended to create an embryo or human admixed embryo. In addition, it is expected that any person working in the field will know the rules under the Act when they apply, and when a licence is needed. The point that the hon. Gentleman has raised in relation to his amendment is about things that happen accidentally or without being planned, because of the nature of division before fertilisation. I shall answer his specific points.

It is my view, and that of the Government, that the clear set of rules that has been set out is appropriate. That is because we are dealing with one of the most sensitive areas, which Parliament has deemed it appropriate to regulate. I appreciate—the hon. Gentleman quoted from the letter that I circulated to the Committee—that there are occasions when an embryo could be created when that was not the intention. An example would be the accidental creation that the hon. Gentleman referred to this morning.

Amendment No. 173 would add a new defence to the 1990 Act for a person charged with an offence of creating, storing or using an embryo or admixed embryo, or storing gametes, without a licence. 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. As I said this morning, it is not acceptable in this complex area for the law to include a caveat to the effect that, despite the fact that incredibly knowledgeable people are engaged in highly complex activities, the test should be what was or was not in the mind of the researcher as to whether the creation was accidental.

I reiterate what I said this morning: there is no defence in the 1990 Act, and for a prosecution to be brought under that Act some safeguards or additional points need to be borne in mind. The Crown Prosecution Service must first obtain the consent of the Director of Public Prosecutions to proceed. That is not a common proceeding for criminal offences. It is reserved for offences in relation to which weighing the discretionary factors relevant to the decision whether to prosecute is likely to be a sensitive and difficult task. That makes it desirable for the CPS to obtain prior approval for a prosecution. If an offence were committed under the 1990 Act, the facts of the case would be looked at carefully and in detail before any proceedings were brought. That is necessary in such a complex area.

The hon. Member for Oxford, West and Abingdon quoted from the letter that I circulated to members of the Committee last week. Where there is any doubt about particular research projects, it would always be wise to talk to the HFEA about whether a licence was required. Indeed, there is currently a licensed project in connection with the research that we are discussing, which indicates that such projects are covered by the current definitions, so no further clarity is required.

I would, however, go further. The amendment says that, although the individual creates an embryo, they do not think that the Act applies to them. However, we have talked about the responsible person and the circumstances under which a licence would be granted or revoked, and the obligations are quite clear: the emphasis is on the researcher to understand and comply with the law.

Clearly, a researcher storing eggs will know that they could divide and thus create an embryo. Such people are at the forefront of their science and need to be aware not only that such things can happen, but of the consequences. Equally, they should know that the 1990 Act regulates their activities. It is therefore incredibly difficult to see how the defence in the amendment could work, given that it is based on what each researcher will know, instead of taking a clear line from the Bill, with the caveats that I have outlined regarding when a prosecution might proceed. This is not a new issue, and there is no indication that we should move away from the current arrangements.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Even despite the caveats, it is clear from what the Minister is saying and from her letter—at least she is being clear—that anyone who cultures eggs in vitro will have to get a licence because the eggs might divide. I wanted to confirm that there is no escape from that and that things that did not previously require a licence will now require one for safety.

There is a further problem, because storing gametes is a licensable activity. Where, in terms of the development of the germ line cell, does the gamete start? If work is being done to generate IV-derived gametes, researchers will require a licence because an early-stage IV-derived gamete, even if it is just a germ cell at an early stage—a stem cell—will be covered. If the Minister can make that clear, there will at least be clarity.

Dawn Primarolo (Labour, Bristol South)

No, I am not making that clear. The hon. Gentleman seeks to get me to make a general rule in a highly complex area of science. I have made myself quite clear. I am not taking responsibility for the scientific judgments and the understanding of those involved in such research. The clear indication that I am giving is that an embryo developing spontaneously from an egg is a rare occurrence—that is what I said in my letter, and it is true. Whether a researcher working on eggs would require a licence would depend on the specific project. For example, if a project used donated frozen eggs to analyse their components at a molecular level, the eggs would not necessarily be cultured, so there would be no chance of the parthenote developing. It is therefore not the case that every researcher working on eggs would need a licence from the HFEA. However, it is the researcher’s responsibility to be fully acquainted with the arrangements in the Act and to ensure that he or she complies with them.

This is a highly complex area. The steps to prosecution do not follow the normal criminal prosecution route—if I can put it that way—as there must be consent from the Director of Public Prosecutions, which is not common. The hon. Member for Oxford, West and Abingdon argues that there should be a general rule, licensed or not. The Government are trying to travel a narrow line by regulating where appropriate, but not allowing a caveat whereby some research might deem itself not to be covered by the Act and the offence. The responsibility goes squarely back to the researchers, the purpose of their research and the circumstances under which a licence should be acquired. If they have any doubts, they should refer them to the HFEA. That is the right place to put it.

To have a general rule means that we are in great danger of opening up areas of research that we intended to be regulated, but which are not regulated as we cannot get the legislation in line with all the objectives. This is a good, balanced and fair position to be in. It is not a new issue. It has worked over the period since the 1990 Act, and I see no reason why it should not work further. I do not suppose that I have convinced the hon. Member for Oxford, West and Abingdon with those comments, as he may hold very strong views on the matter, but I hope that at least he can clearly see the Government’s reasoning behind remaining at this position.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I can see clearly what the Minister is saying. I said that this was a probing amendment and I was not wedded to it. I do not have strong views about the amendment, and a defence is not the ideal way to deal with this. However, it is necessary for the Committee to be certain about what is going to happen. I never spoke about “every researcher working with eggs”—which is what the Minister said—because obviously, if eggs are frozen, they are not in culture and they are not going to divide. I spoke about “every researcher who is dealing with eggs in culture”. Considering the situation, including this debate and what has been said in the Minister’s letter, it appears that those researchers will have to get a licence. I do not believe that that was the previous position—I know that it was not. There will be more licences, and regulation will extend. If regulation must extend as a by-product of a wider definition for other reasons then so be it, but it is important that researchers understand that.

Some researchers have a view on the matter. Those at Newcastle told me that it would be a disappointment to researchers that the spectre—as they put it—of the need to get a licence was going to hang over anyone working with eggs where the purpose did not involve fertilisation and so forth. At least now there is clarity about the Government’s position on that. The HFEA will have to work quickly before and after enactment, to ensure that everyone is clear.

One other area is not absolutely clear. The Minister has finished her contribution so I am not necessarily expecting a reply, but I would like her, and those reading the proceedings, to reflect on this. An egg is defined as a cell of the

“female germ line at any stage of maturity”.

If one has an embryonic stem cell that is pluripotent, at what point does that become an early stage bone marrow or germ line stem cell? It is pluripotent; in theory, from that embryonic stem cell, a cell from that line could be differentiated into a germ line cell—that is the point of them. There is therefore another question about at what stage people who are researching solely on stem cell lines—separate from the embryo work that another group may be doing—may themselves need a licence. The entity that they are working with may be heading with differentiation towards a germ line cell, and it may be considered to be captured. The storage of such cells is a licensable activity.

The point that I was making in tabling the amendment was that the breadth of regulation might well have increased, but it is not a question of scientists not knowing either the law or what they are doing. I was a little surprised by the Minister and do not think that she was serious when she said that I was arguing that senior scientists did not know what they were doing. The way science works means that it sometimes surprises people, and many discoveries are made through surprising and serendipitous findings, so no scientist is able to say in a protocol that something definitely will or will not happen. That is the nature and excitement of research. Clearly, any scientist working in this field has a responsibility to know and accept the law. When it is likely that an embryo, or something that could possibly be defined as an embryo, will be created, they will have to get a licence.

I do not want it to be left in anyone’s mind that scientists do not understand the law or are seeking to avoid it. It is just that there will now be extra regulation. If the Minister could reflect on the question about embryonic stem cells and when they become germ line cells at any stage of development, it might be useful to clarify that, because the HFEA will certainly have to.

Dawn Primarolo (Labour, Bristol South)

Does the hon. Gentleman accept that discretionary factors are already in place that can be considered before a decision is taken on whether to prosecute, and that those discretionary factors are intended to deal precisely with some of the issues that he has identified? He has not made a case for why that is not enough; he simply reasserted that a licence is needed for everything. I clearly stated the conditions under which we would expect them to consider whether a licence was necessary.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise to the Minister for not dealing with that, although it was my intention to. They clearly have a choice: they can get a licence or rely on the fact that there would be discretion in prosecution. I am sure that that discretion would be used wisely, but many people do not like the idea that, although there can be an investigation, there could be a decision later in that process not to prosecute. We saw that during the debates in the House on religious hatred.

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman started his contribution on the amendment wanting to cover scientists who inadvertently went outside the licences. It was not that they set about going outside the licence. He referred to that just a minute ago as the wonder of science, and I have told him that that is covered. Is he now saying that he wants them to have the absolute right to do certain research outside the licence? That is a slightly different proposition.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not think that it is a different proposition. If it is likely that an embryo will be created, either as the intention of research or as a foreseeable consequence, clearly they should get a licence, and I think that that now applies to eggs in culture. An alternative, to avoid the need to get a licence, would be for there to be a clear defence to cover those circumstances in which, in full knowledge of the law, research artefacts that are not the purpose of the study, are not being described and will not last long, might emerge. That would make the whole question of investigation and prosecution much less likely. That would actually add an extra safeguard with regard to the decision to prosecute, because prosecutors will not prosecute if there is a defence that could be prevailed upon. So that would give researchers more confidence that they are not going outside their licence. It would be wrong for them to go outside their licence, and that is not what I am saying. It would be something that is not obviously licensable and could be done without a licence because it has nothing to do with embryos, but if something that could be described as an embryo in this wide definition is produced as a research artefact, they will be reassured and not scared off the idea of doing the research.

I do not think that it is satisfactory to rely on the DPP discretion, although I understand what the Minister says about that, just as it is not satisfactory to rely on an Attorney-General’s discretion, although it is better than nothing. Researchers will have to get a licence. I do not think that scientists will run the risk of not having one and having complaints made against them. However, that is for them to judge.

The Government have made their position clear on the question of eggs in culture. I repeat that there is a further issue about stem cells, but that probably needs greater reflection. I was not planning to put the matter to a vote, so I beg to ask leave to withdraw the amendment.

Clause 30

Dawn Primarolo (Labour, Bristol South)

I beg to move amendment No. 55, in clause 30, page 34, line 14, leave out ‘4A(5)(e) or (10)’ and insert ‘4A(4A) or (10)’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss Government amendments Nos. 56 and 57.

Dawn Primarolo (Labour, Bristol South)

I shall make some brief remarks.

Dawn Primarolo (Labour, Bristol South)

I said that I would make some brief remarks, but I had not realised how brief they would be.

The definition of a human admixed embryo was amended during Committee of the whole House to include a catch-all provision. That captures all embryos containing both human and animal DNA in which the animal DNA does not predominate. The amendment was tabled following extensive discussions on definitions during the passage of the Bill through another place. The amendment also removed the power to extend the definitions of human admixed embryos through secondary legislation, as it was no longer required following the introduction of the new catch-all definition. Those amendments were accepted by the House.

In addition, an amendment was passed to insert a new regulation-making power to specify circumstances in which the keeping or use of human admixed embryos would be prohibited. The amendments tabled in this group are consequential to those tabled during the Committee of the whole House. They take out references to the regulation-making power to extend the list of human admixed embryos from clauses 30 and 31, which deal with the exercise of regulation-making powers under the Bill and the power to make consequential provisions in certain cases respectively.

The amendments also insert a reference to the new power into clause 30 to ensure that any regulations under the provision would be subject to debate in both Houses—the affirmative procedure. In that sense, they follow directly on from the decisions made in Committee of the whole House. The amendments extend no further principles in the Bill, but they tidy up the legislation and remove powers that are no longer required.

Mark Simmonds (Conservative, Boston and Skegness)

I shall ask a couple of brief questions to make sure that I understand the changes that the Minister is proposing in the Government amendments. Do the consequential amendments mean that the exercise of every regulation-making power in the Bill has to be ratified by an affirmative resolution of Parliament, or are there different categories of regulation? It is not necessary to provide the information now—the Minister can give it in writing—but it would be helpful for the Committee to understand which regulation-making powers in the Bill have to be resolved by Parliament through affirmative powers and which do not.

I have a specific question about amendment No. 57. As the Minister has just explained, I understand that the removal of the term human admixed embryo—leaving out lines 34 and 35—removes the regulation-making power to change the definition of human admixed embryos, but how does that relate to the regulation-making power under section 4A(10) and amend section 4A(5) of the 1990 Act, which relate to human admixed embryos? I understood that that meant that the Government could change the definition of a human admixed embryo. Or does the regulation-making power in new section 45A(2)(b), inserted by clause 31, override sections 4A(10) and section 4A(5)?

Dawn Primarolo (Labour, Bristol South)

A list of the categories are subject to affirmative resolution under the Bill and, rather than list them all into the record, I am happy to point them out in correspondence with the hon. Gentleman and other members of the Committee, for ease of reference in future debates. As for the changes that are being made, the decision taken on the Floor of the House to have a catch-all provision removed the necessity for regulations on definitions of admix, so we are removing it from the Bill. The Government have the power to amend the existing definitions, but they will no longer have the power to add new categories to those definitions. The amendments would remove the power from the Bill because it is not required any more. Changing the existing definitions, if that proved necessary, would be subject to affirmative procedure.

The cross-referencing is different because we made the changes in Committee of the whole House, and we are now tidying up the Bill. It is as though we have been in Committee all the time and are simply amending the Bill in two locations. I hope that I have made matters clear. As I said, the list is long and, rather than delay our proceedings by reading it into the record, I shall circulate it to all members of the Committee. It will not take a moment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 174, in clause 30, page 34, line 14, at end insert ‘section 20A; section 20B;’.

Last Thursday, we debated clause 21, which inserted new sections 20A and 20B in the 1990 Act. It resulted in agreement that those regulation-making powers should be subject to the affirmative procedure, and I asked whether they were. The Minister agreed that they should be, but it turned out that they were not. To assist the Committee, I have tabled an amendment that would make them subject to the affirmative procedure. I am not sure that it does the job, but it would be one less thing to cover when we discuss the Bill on Report. That is why I tabled the amendment.

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman spoke to me during the break and said that, in the light of events, he would not speak to his amendment. However, I suggested that he move it formally, because he should be given acknowledgement for trying to catch up with the Government’s position. It is true that we debated the appeals procedure and whether or not the regulations would be subject to the affirmative or the negative procedure. I clearly said to the Committee that they should be subject to the affirmative procedure.

I thought that I made a joke, but the hon. Gentleman did not think so. However, I hope that he will allow me to make it once more. The hon. Gentleman is improving his skills as a parliamentary draftsman. He is nearly there—he is doing fantastically well. I have never been able to do as well in my time in Parliament. However, he has not quite made it on this occasion. I would have been willing to accept the amendment if it had been drafted correctly, but I will need to table another on Report to put matters right. However, I will be more than happy for the hon. Gentleman to add his name to it. The amendment will be tabled. The regulations are currently subject to the negative procedure, but we will take steps to make them subject to the affirmative procedure. I know that the hon. Gentleman will not press his amendment to a vote because he knows that it does not quite work, but it establishes the principle.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for explaining that. It is back to the drawing board for me and my proposed new career. It is sometimes the habit of Opposition MPs to consult the Public Bill Office and then blame them. I cannot do that in this case. The amendment was my own poor work, and I look forward to seeing the Government’s proper amendment in due course. I beg to ask leave to withdraw the amendment.

Clause 31

Clause 32

Mark Simmonds (Conservative, Boston and Skegness)

I wonder whether the Minister can explain the difference between regulation, as set out in clause 30, consequential provision, as set out in clause 31, and orders, as set out in clause 32.

Dawn Primarolo (Labour, Bristol South)

Will the hon. Gentleman repeat the question?

Mark Simmonds (Conservative, Boston and Skegness)

Of course. Clause 32 refers to the Government’s ability to make orders, yet clause 30 refers to regulations, clause 31 to consequential provision, and clause 32 to orders. Is there a difference between regulation, consequential provision and orders? If there is, what is it? If they are the same, why has different terminology been used in three consecutive clauses?

Dawn Primarolo (Labour, Bristol South)

Clause 30 deals with the regulations made under powers introduced by the Bill that are exercised by the authority—codes and so on. Clause 32 refers to the procedures of this House—whether matters are subject to the affirmative or the negative procedure. There is not a huge difference in practice, but there tends to be a consequential relationship between regulations and orders and the procedures under which they go through the House. One may ask why that is the case, and the answer is that the House has always done it in that way, and there is parliamentary precedent.

None

Mark Simmonds (Conservative, Boston and Skegness)

Clause 33 defines the meaning of “mother”. It states:

“The woman who is carrying...a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”

That definition dates back to the 1990 Act. I want to raise at this point, under a stand part debate on this clause, surrogacy arrangements affecting the mother and the definition of a mother. There are some complex and difficult issues that relate to the mother in surrogacy arrangements, which I do not think will be discussed in relation to any other part of the Bill.

Surrogacy arrangements are recognised in British law as long as no payment is made and only reasonable expenses are reimbursed. In the UK, surrogacy arrangements are not a binding agreement on either party; there is very little that the intended parents can do to secure their position prior to birth, even in gestational surrogacy—where the baby is genetically related to both intended parents and not to the surrogate.

Under the 1990 Act, if a child is being carried by a woman as a result of being artificially inseminated or has had an embryo introduced into her, she is to be treated as the mother for all purposes even if she is not genetically related to the child, and her husband will be treated as the father unless it is shown that he did not consent to the treatment. That parental consent and status can be lost only through a parental order or an adoption, and, I understand, that that is retained in clause 35, to which the hon. Member for Oxford, West and Abingdon has tabled an amendment. In the United Kingdom, parents who wish to use surrogate mothers then have to adopt the child or apply for a parental order, which involves a great deal of state intervention. Parents can be refused adoption orders even though the child is their genetic offspring. That is not the case if the surrogate is not married, as the genetic father can treat the child as his legitimate offspring and apply for a parental order much faster.

When these issues were debated in another place the Minister there promised that the Government would give those anomalies further consideration. Can the Minister state for the record today where those considerations have got to?

I shall put on the record two or three further complexities in this already very difficult area. There is an argument that a single commissioning genetic parent—the women who has had a child conceived from her egg and the single father—are discriminated against under the new provision. The law elsewhere in the world is not the same as it is in the UK, which adds complexity. For example, in the United States of America the legal parents of the offspring are the commissioning parents, not the parent who bore the child. Therefore, a child born by commissioning parents in the United States could be parentless and stateless. That may be considered under other pieces of legislation. The British Nationality (Proof of Paternity) Regulations 2006 may be illegal.

It will be helpful if the Minister could put the Government’s position on the record, especially in the light of the significant immigration into the UK from the European Union since the EU accession countries joined in 2004. Indeed, under EU law there is—correctly—more leeway for individual states to make their own appropriate legislation and regulations in this area of law, because it is so sensitive. There is therefore no consistency across the European Union.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Surrogacy is a big issue. I am in some difficulty as I have amendments tabled to clauses 35 and 54, which touch on surrogacy issues, albeit not necessarily those mentioned by the hon. Gentleman. I am not suggesting that you should consider him out of order, Mr. Hood, but we have to be cautious because we are going to deal with some of these issues later.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The hon. Member for Boston and Skegness was not out of order.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That was the point that I was making. I was not rising to make a point of order, Mr. Hood. If I had wanted to say that the hon. Gentleman was out of order, I would have said that, but I did not think that he was. However, I am concerned about how far we can go in the discussion and I am seeking your advice, Mr. Hood, as there are amendments to clause 35 that deal with UK citizens seeking surrogacy arrangements abroad.

Mark Simmonds (Conservative, Boston and Skegness)

My understanding is that the amendments to clause 35 relate to the husband of the surrogate being considered the father. The points that I made under clause 33 related specifically to the meaning of “mother” as detailed in the provisions of clause 33.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is helpful. I wanted to raise another issue about surrogacy that I hope that the Minister will reflect on. It builds on the point made by the hon. Member for Boston and Skegness. The law in this country provides for surrogacy, but not for equality for surrogate parents in respect of maternity leave and employment protection. We cannot go too far down that path during debate on a health Bill, but as the Bill makes provision for surrogates, and as I know the Government are keen to ensure that there is no discrimination in legislation and that the welfare of the child is paramount, have the Government given any thought to whether it is appropriate to ensure maternity leave rights and employment protection for surrogate parents?

Part of the problem is that, as we have discussed, until a parental order is obtained, one is not the legal parent. By the time one is entitled to take some of the leave available, it is rather after the fact, as one wants to take such leave as early as possible. As I am attempting to stay in order, what I am asking is whether the Government are sure that nothing more can be done through conversations with other Departments, particularly the Department for Business, Enterprise and Regulatory Reform, to ensure a system that supports children and allows the creation of new families with children who are loved and wanted. The mothers and fathers involved in such arrangements—they are few—should have the opportunity to benefit from the arrangements available for other parents, arrangements that the Government introduced. I certainly support those arrangements and I think that there is full support for them across the country and the House.

I had better leave my remarks there. I was just probing that particular matter.

Dawn Primarolo (Labour, Bristol South)

Mr. Hood, I am sure that you will stop me if I move beyond the remit of the clause. Clause 33 deals with the meaning of “mother”, replacing section 27 of the Human Fertilisation and Embryology Act 1990. It provides that a woman who carries a child as a result of assisted conception, wherever and however it took place, is the mother of the child. It also provides that if the child is then adopted, the woman who carried the child will no longer be the mother.

The hon. Gentlemen have touched on the specific considerations around surrogacy, and we will do so again at various points in the next few clauses. The hon. Member for Boston and Skegness asked me about our considerations—what we reflected on and what our conclusions were. I had intended during debate on amendments Nos. 171 and 172 to say what our view is and why we have taken it with regard to who is considered to be the father of the child and situations where the couple is married. It may be more appropriate to respond to his point then, when I will be happy to pick up any further points.

Surrogacy is an option of last resort for couples who cannot have a child by other means. The Bill extends the categories of couples who can apply for a parental order. The new provisions also make changes in terms of assisting organisations, but there is no international agreement governing or setting minimum standards for surrogacy arrangements. In the United Kingdom, the law applies to anyone who is resident, whether or not they are British citizens and whether or not their residency here is permanent.

Complicated arrangements are necessary, especially when surrogacy arrangements have been made outside the UK. Immigration law covers that. In exceptional circumstances, that goes to the heart of recognising the woman who carries the child as the mother and, if she is married, her legal husband as the father, unless he did not give consent, on the basis that a mother in surrogacy could decide not to give up the child. How immigration and employment law, the birth certificate, parental responsibilities and adoption rights interact is incredibly complex, but we attempt to cover such interaction through various clauses in the Bill.

Perhaps with a little latitude I could respond to the question that the hon. Member for Oxford, West and Abingdon asked about the rationales for maternity and paternity leave and what the Department for Business, Enterprise and Regulatory Reform could do. Maternity leave and pay was introduced primarily to protect the health and safety of the mother following the birth of the child and to help women to take time off in the weeks around birth. It is clearly predicated on such events—women are required by law to take a period of maternity leave after the birth of the child.

Rights to adoption leave and pay enable the adoptive parent to take leave from work. The idea that we would duplicate and give different parents access to the same leave, payments and rights when transferring legal rights is complicated. It is not wholly appropriate to discuss it under the Bill, and I feel that I would be straying if I did so. I merely wish to indicate to members of the Committee that, as we discuss these clauses, but not now, certain things will need to be said about the legal recognition of surrogacy, its interaction with international law, and the rights of the mother who carried the child.

The Government do not consider that there is unlawful discrimination against single people in such situations, which was mentioned, because being single has not been recognised as a protected status for the purpose of the European convention on human rights. I shall say more about that when we consider other amendments to clauses that we have not yet discussed. However, the measure is not about the quality of parenting or the ability of a single parent to be an excellent parent, but the complex interaction of the courts’ decisions on surrogacy and the current law in this country.

I have been careful to indicate sensitivity to the Committee, without going beyond the scope of the clause. I feel that the hon. Gentlemen will want to comment when we discuss subsequent clauses and amendments, because their principal points will come up in more detail. I hope that that is in order and helpful to the Committee.

Jimmy Hood (Labour, Lanark and Hamilton East)

The Committee managed its way through that stand part debate with a little flexibility, and still managed to keep in order. That allowed hon. Members to make one or two important points.

Clause 35

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 171, in clause 35, page 36, line 19, after ‘then’, insert

‘unless W is a surrogate mother within the meaning of section 1(2) of the Surrogacy Arrangements Act 1985 and’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 172, in clause 42, page 40, line 4, after ‘then’, insert

‘unless W is a surrogate mother within the meaning of section 1(2) of the Surrogacy Arrangements Act 1985’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The amendments are to do with surrogacy, which we have been discussing, and are intended to deal with what I consider to be an anomaly in the parenthood provisions. I believe that it is rectifiable, and that not sorting it out will cause avoidable problems. I shall argue that those problems can be solved by way of the amendments or something similar. There does not appear to be a problem in so doing, and significant benefits would result. To support my argument, I shall read from a briefing that I have been sent by Natalie Gamble, a solicitor in family law, who has raised this issue on a number of occasions with me and in public.

If the surrogate is married, neither commissioning parent will be a legal parent at birth. That can cause particular difficulties in respect of cross-border arrangements, which were touched upon earlier, and in respect of the standard UK arrangements. For example, if the intended parents use a married surrogate, they will have to wait until they have a parental order to acquire parental responsibility—a process that can take up to nine months or even a year—and in the interim, they will have no authority to make decisions for their child. That is in cases in which there is no dispute about who is looking after the child, the surrogate mother provided surrogacy within the law, and the child is living with the intended or commissioning parents. In turn, that can cause problems over issues such as child immunisation, because the legal parents need to sign the consent forms.

The solution that was proposed to me, which I now put to the Committee, is to exclude the rule that a married surrogate’s husband is the legal father in surrogacy cases. Although that rule is critical for donor insemination parents, it is not problematic for the law to distinguish between donor insemination and surrogacy cases. The intended father in the vast majority of surrogacy cases could therefore be the legal father at birth. That would give him the general entitlement to act as a parent and enable the intended mother to acquire parental responsibilities before getting the parental order, using the step-parent parental responsibility rules.

The amendments provide a quick way of ensuring that the intended parents—the social parents looking after the child—are able to make those decisions rather than having to track a surrogate and her husband who have ended their relationship with that child and may live many miles away, or even abroad.

Robert Key (Conservative, Salisbury)

On a point of order, Mr. Hood. The hon. Gentleman has been reading a long quote from a document of which the Committee does not have sight. He has based an amendment on that document, a briefing that he received from I know not where—I did not catch where it came from, although he mentioned someone’s name. We cannot be expected seriously to consider the amendment on that basis. It simply is not on.

Jimmy Hood (Labour, Lanark and Hamilton East)

It is in order for an hon. Member to receive a briefing from any source. If they think it appropriate to refer to it in Committee, that is perfectly in order.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was not quoting from any document—[Interruption.] No, I said that I had received a briefing. The Minister receives briefings from officials.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I have given my response to the point of order. I invite the hon. Gentleman to carry on discussing his amendments.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am keen to do so. I think that I have been in order, and I have not in my time ever had problems receiving advice.

I have actually finished my point: the amendment would enable decisions to be made in the best interests of children quicker.

Mark Simmonds (Conservative, Boston and Skegness)

If the husband of the surrogate simply did not consent to the treatment, would that not avoid his being the father and thereby negate the necessity of the amendment?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Clause 35, which relates to a woman married at the time of treatment, states:

“If...at the time of the placing in her of the embryo or of the sperm and eggs...W was a party to a marriage, 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 placing in her of the embryo or the sperm and eggs”.

That is the type of case that the hon. Gentleman raises, but I am talking about a case in which the husband of the surrogate is happy for the woman to act as a surrogate. He is clearly consenting to the surrogacy arrangements taking place and wants to give the child to the intended parents.

Surrogates provide a wonderful service in such cases, and we have clear laws about the non-transmission of money in that situation. Unless we are to break down surrogacy arrangements in their entirety, which has never been done under Conservative or Labour Governments since 1985, when the provisions were formalised in so far as they have been formalised, it seems reasonable to make the provision that I have described.

I hope that I have dealt with the hon. Gentleman’s point. If the man did not consent, a surrogacy situation would be being created against the wishes of the husband. That would create at best an artificial situation in which he would have to indicate that he was not consenting. That would not be appropriate. The same point applies to amendment No. 172, which relates to a woman in a civil partnership at the time of treatment.

I have case studies, to which I would have liked to refer, but given that the hon. Member for Salisbury objects to the reading into the record of evidence or the giving of examples, I will not do that. However, there is clearly a problem for people in the situation that I have described. I think that the amendment would solve the problem and would not create any new problems. I hope that the Minister will look kindly on it.

Dawn Primarolo (Labour, Bristol South)

The subject of surrogacy is complex and fraught with difficult ethical considerations. The Human Fertilisation and Embryology Act 1990 and the Bill recognise that by providing elements of certainty, although it is not possible to provide complete certainty, because of the complexity. One of those elements is that if the surrogate mother is married, her husband is treated as the father of the child unless it is shown that he did not consent to the treatment—a point that has been made. That provision reflects the common law presumption that a child born to a woman in a marriage is also the child of her husband. I shall return to that principle in a moment because it is a very important principle that the legislation is designed not to breach. The Bill extends the provision to civil partners, so that the mother’s civil partner is the parent of a child born through assisted conception unless it is shown that she did not consent to the treatment. That reflects the fact that the civil partnership is given the same status as marriage, in recognition of the parental responsibilities.

The hon. Member for Oxford, West and Abingdon has tabled amendments that would introduce an exception to that principle by explicitly removing the provision for surrogacy cases. If a surrogate was married or in a civil partnership, parenthood would be removed from her husband or civil partner, thereby making it possible for the man in the commissioning couple to be registered as the father from birth if he was the genetic father.

I understand that the intention behind the amendments is to make it easier for commissioning parents to obtain parental responsibility where the surrogate is married and to ensure that a commissioning couple who have a child using a surrogate abroad do not face immigration problems on returning to the UK with the child. Surrogacy is, however, a fairly sensitive and complex issue, and I suspect that members of the Committee will hold differing views on it.

Although surrogacy arrangements are not illegal, they are not enforceable by the courts. That is to avoid a surrogate being forced to hand a child to whom she has given birth over to someone else. The clear principle, which the Bill maintains, is that the woman who gives birth to the child is the mother. Having given birth, she may change her mind about handing the baby over to the commissioning couple, and the law recognises that she is entitled to do so. That may be a fraught issue for commissioning couples, but the law is there for specific reasons, and those principles have underpinned surrogacy thus far.

I recognise that the situation that we are discussing would be upsetting, particularly for the commissioning couple, but we must look to the child’s welfare. Removing a baby from a mother against her wishes is not something that the 1990 Act or the Bill encourages, but the amendments would undermine that position. In the unusual circumstance of a surrogate choosing to keep the baby, taking fatherhood or parenthood away from her partner and giving it to the commissioning father—if he is the genetic parent—would open the way for the commissioning couple to claim custody of the child. That would open up untold difficulties and problems.

As I have said, this is a highly sensitive and complex issue, which is fraught with difficulties. In those circumstances, the Committee should not add further difficulties to what is already a difficult situation. That would complicate matters in a way that was not in the child’s best interests, and it is the child’s best interests which continue to anchor our considerations. I recognise that the amendments seek to address a sensitive situation by removing parenthood from the married man in particular situations. However, we cannot breach the other principles that I have outlined, with the consequences that that would have for the child.

The hon. Gentleman touched on some of the other difficult issues relating to surrogacy, such as immigration, parenting orders and adoption. After a lot of consideration by the Government following the debate in another place, I cannot see that it makes sense to move away from the key principles that I have identified. I hope that that puts on the record why the Government remain of that view, and that the hon. Gentleman will reflect and withdraw his amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I understand the Minister’s point. In the circumstances—which I think are very rare, but could happen—where the surrogate mother does not wish to pass responsibility for the care of the child over to the intended or commissioning parents, giving the commissioning father legal status would give them grounds for custody-type hearings. I doubt that such hearings would be successful, but they could occur and I accept that that is a drawback to the amendment.

In the vast majority of cases, the advantages in assuring quicker parental rights for the commissioning parents—those who look after the child, make decisions for the welfare of that child and should not have to wait as long as they do under current procedures—outweigh those drawbacks. However, I see the Government’s point. A balance must be found, and the Government feel that even in a very small number of cases, a potential legal tug of war between an intended father with parental rights and the surrogate mother would not be edifying. Nothing in this area is edifying when it goes to law, and perhaps the Government recognise that the path of least resistance in respect of creating situations where that might occur, is not to accept the amendments.

As I said, I am disappointed. One would have thought it possible for the law to be changed to ensure that there was no hope of a successful application in such a case. It would mean that, even where the commissioning father had parental rights, he would not be able to exercise them successfully in a legal case in which the surrogate mother was very clear that she did not want to give up the baby. The situation would be the same as it is now, except that in the vast majority of cases, transition would be smoother.

Clearly, those provisions are not in my amendments and the Government have not had a chance to consider that point. I will reflect on what the Government have said and see whether there is a way of dealing with the problem that the Minister has raised. In the meantime, I beg to ask leave of the Committee—including the hon. Member for Salisbury, for whom I have a great deal of respect—to withdraw the amendment.

Mark Simmonds (Conservative, Boston and Skegness)

Briefly, one of the issues that has come out of the interesting debate that we have had about surrogacy—both in clauses 33 and 35, and on the amendments just withdrawn by the hon. Member for Oxford, West and Abingdon—is that there is concern in legal circles about the current working of the legislation in the Bill, the 1990 Act, and the Surrogacy Arrangements Act 1985. The 1985 Act was nearly 25 years ago, and it may be appropriate both regarding mothers and surrogacy, and in relation to the point made by the hon. Member for Oxford, West and Abingdon about fathers and consent and surrogacy—

Ian Gibson (Labour, Norwich North)

Does the hon. Gentleman agree that there is doubt in some of our minds about the commercial interests of the lawyers in this business? Some of their views, as much as they may be pure, may also be pure for the money that is involved. How do we discern who is in it for the money and who is in it for the principle?

Mark Simmonds (Conservative, Boston and Skegness)

The hon. Gentleman makes a reasonable point, although certainly, those lawyers with whom I have discussed the matter and from whom I have received briefing did not give the impression that they were in it for the money. They are in it to clarify exactly what the law and its intentions are and how that interrelates with other Acts of Parliament, so that they can advise their clients officially and properly on the law and where they stand. However, I accept that it is a complex matter. I also accept that we should not go down the route of commercialising surrogacy, but there are clear inconsistencies. It would give the Committee some comfort if the Minister were prepared to say that she would get people in her Department to consider it and, at some appropriate point, to bring it back to the House for discussion.

Dawn Primarolo (Labour, Bristol South)

I draw the hon. Gentleman’s attention to the fact that the Government gave a commitment to the scrutiny Committee on the Bill that we would review the regulations dealing with surrogacy. It is a delicate and difficult issue, precisely because the Committee raised a number of issues that we were unable to deal with at that point. I believe that the Committee accepted that that was a sensible way forward. That is intended to happen after the Bill has completed its progress and received Royal Assent. It is necessary to connect with other policy areas and to reflect on some of the points made. I am not saying that our minds are made up as to the conclusion. It is worthy of reflection and consultation. I am happy to confirm that, in answer to both hon. Gentlemen’s concerns.

Clause 37

Mark Simmonds (Conservative, Boston and Skegness)

The clause deals with the conditions that must be met for a man to be treated as the father of a child, irrespective of whether his sperm was used. The man does not have to give written consent under the conditions if he is married to the woman being provided with the treatment, as the agreed fatherhood conditions apply only if a couple are unmarried. If a couple are married, the husband does not need to give written consent, yet in clause 35, a married man must show that he did not consent. Must the fact that he did not consent be put in writing, or can it be verbal? If there is no procedure requiring married couples to give written consent, how can it be confirmed that a father did not consent to the treatment?

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman asks about the opt-out, when it can occur and what form is necessary. The consent to fatherhood agreement can be withdrawn only up to the point at which the embryo is transferred into the woman. As elsewhere in the Bill, a lack of consent does not have to be put in writing, but in practice, evidence will be needed that consent has been withdrawn.

Although writing is not specified, it will probably need to be in writing, or at least absolutely clear, that consent has been withdrawn. That is a feature of different parts of the Bill. The hon. Gentleman will remember that we discussed the fact that although it does not actually say that it must be put in writing, that is the best way to ensure that it has been agreed. However, other clear recorded indications that consent has been withdrawn are not disallowed.

None

Mark Simmonds (Conservative, Boston and Skegness)

I have one question about clause 38 and how it will operate in practice. If a donor-conceived child is implanted in a woman and both the parents consent but are unmarried, and if during gestation the mother marries a different man, the husband under common law becomes the father. That is right. What happens if the woman who has had the embryo implanted enters a civil partnership? Does the new civil partner become the parent post-embryo transfer?

John Pugh (Liberal Democrat, Southport)

I was hoping that the Minister could enlighten me along similar lines. I need to clear my head about this. As I understand it, if the father is the genuine, biological father through the normal route, he retains parental rights even if the relationship breaks up after pregnancy. If, on the other hand, IVF is the procedure through which the child is generated, it appears that if the relationship breaks up mid-process, all rights are forfeited. I think that they are forfeited regardless of whether the broken-up-with partner is the donor or not—it does not matter if the donor is someone else or the partner concerned. If the person then remarries, the newly married partner legally assumes the responsibilities—I think that I am correct in saying that.

We seem to have a degree of legal asymmetry, if I can put it like that. It would seem to be that in the case of civil partnerships it is, in a sense, a choice, whether the new civil partner does or does not take on the role and responsibilities of the parent. Does the Minister recognise that legal asymmetry? Is that legal asymmetry just the result of a read-across from civil partnership on one side and marriage law on the other side? Is it simply the consequence of other bits of legislation? Or are those differing responsibilities and rights created by the Bill itself?

Dawn Primarolo (Labour, Bristol South)

In the circumstances in which the hon. Member for Boston and Skegness described, it would be presumed that the new husband was the father of the child. If it was a civil partnership, the new partner would become the recognised parent, because the relationship was there before the child was born.

John Pugh (Liberal Democrat, Southport)

I hate to correct the Minister, but the explanatory note says that there is

“no parallel presumption at common law for people who enter a civil partnership.”

Dawn Primarolo (Labour, Bristol South)

If the marriage is dissolved and the person enters into a civil partnership, there is no common law presumption of legality to the original donor, which would therefore be the legal father. The hon. Gentleman is quite right. That is to do with the point at which it goes back to the previous clause, at which point the consent was active and the embryo was implanted into the woman.

This is much too complicated, Mr. Hood. The hon. Gentlemen should write to me so that I can understand the unusual circumstances that might arise. The hon. Member for Boston and Skegness has put on record a case that I understand, but I am not so clear about the case detailed by the hon. Member for Southport. I will then send them a letter.

Mike Penning (Conservative, Hemel Hempstead)

Will the Minister give way?

Dawn Primarolo (Labour, Bristol South)

Just a moment. Please let me deal with one complex point at a time. I will then give to the Committee the legal route that the case would follow and the consequences.

Mike Penning (Conservative, Hemel Hempstead)

Surely it would be more logical and helpful to the Committee—some of us did not follow what the hon. Gentleman was saying either—if the Minister could send to the Committee a copy of the transcript when it appears tomorrow, so that we know where we are, rather than having correspondence flying between one Front Bencher and another.

Dawn Primarolo (Labour, Bristol South)

That is a helpful intervention, and it corrects my position. The hon. Member for Boston and Skegness outlined a scenario in which one legal relationship has broken up and another has been formed. He wishes to see the interaction between the consent given originally and the new circumstances. The point at which consent could be withdrawn has passed because it is during the pregnancy. At that later moment, what is the difference between being a married couple as opposed to a civil partnership, and what rights are transferred to each person in those circumstances? That is the mess that I have managed to get myself into. That is what I understand the question is and that is what I will seek to answer by way of “if this happens, that happens” to the Committee so that it can see where the legal responsibility finally ends up in either relationship. Would that be helpful?

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for her response. I am also pleased that she understands the question that I am asking, and the reason behind it. It would be helpful for the Committee to understand the response to that particular situation. I suspect, and I think that this was the point that the hon. Member for Southport was making, that it is not a simple matter of reading across from marriage to civil partnerships. Disparities will be exposed, and that was the point of asking this particular question. If the Minister can confirm that in writing after she has read Hansard tomorrow, that would be very helpful. That will have a knock-on impact for subsequent clauses that we will be discussing later on.

Dawn Primarolo (Labour, Bristol South)

Absolutely, and it is about the common law presumption to which we have referred before. We need to focus clearly on that before we enter discussions on some of the other clauses dealing with surrogacy later in the week. I accept that point.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have kept out of this one because I am not clever enough to follow the strange family arrangements that the hon. Member for Boston and Skegness and my hon. Friend the Member for Southport feel so uncomfortable about discussing. This is probably an obvious point, but if there is not a read-across between marriage and civil partnership, does that lead to problems of discrimination? It is my understanding that it was the intention of the law, and policy, to ensure that as far as possible—even if it means converting from common law to statute law to provide that equality—there should be equality between civil partnership and marriage because someone could claim that they were not being given a presumption that other people were and that that was a significant infringement of their rights to equal treatment. There is a presumption in one case but not in the other and civil partners have to strive to overcome that extra barrier. I have raised that as a question for the Minister to consider.

Dawn Primarolo (Labour, Bristol South)

I will reflect on that point. However, the Government have signed to say that the Bill complies with equality legislation so our lawyers will have checked it.

Clause 39

Mark Simmonds (Conservative, Boston and Skegness)

Clause 39 is quite important because it relates to the use of the man’s sperm after his death, irrespective of whether the embryo was implanted before or after his death. Subsection (1)(c)(i) refers to the circumstance where a man has consented to the use of his sperm after his death. Will the Minister confirm whether it would be standard practice on the consent form relating to clause 37 for a man to also give consent regarding use of his gametes after his death, or whether that is completely separate? Also, how does it work in relation to married couples, where a consent form is not required because consent is presumed? Can it be proved otherwise? Is specific post-death consent required?

The further point I want to make about clause 39 is that subsection (1)(d), which I do not understand, gives the woman the right to choose whether the man is considered the father of the child. Presumably, if the original father, prior to his death, consented for his genetic material to be used for the treatment for the purposes of creating a child after his death then he is the genetic father. Unless the woman has remarried, and therefore under common law the new husband is the father, why does the woman have the right to be able to choose whether the man is considered the father? He is the father; he is not an anonymous donor. Perhaps the Minister could also explain—I know that the right hon. Member for Coatbridge, Chryston and Bellshill will be interested in this—why there is a difference between England and Scotland on the 42 days and the 21 days requirements.

John Pugh (Liberal Democrat, Southport)

I just want a simple clarification, but a more basic one. The clause states that if the man has agreed in advance and the woman chooses this within 42 days of the birth of the child, the man can be identified as the father of the child, provided, as the hon. Gentleman has said, that the woman is agreeable. If, as in that case, the sperm of a deceased person is being used, is there any limitation, whether biological, physical or legal, on how long that sperm could have been around? Theoretically, in legal terms we could be talking about a 10 or 15-year period and I wonder whether the law allows any possible period to be used. That could have significance for all sorts of inheritance issues.

Dawn Primarolo (Labour, Bristol South)

There are no inheritance issues here.

Clause 39 replaces, for future cases, provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. Those provisions relate to the use of a man’s sperm to create a child with his consent after he has died. The clause provides that, where a woman conceives a child using the sperm of a man who has died, or where an embryo was created with his sperm before he died, but was transferred to the woman after his death, and the man had consented to the use of his sperm in this way after his death and the woman who carried the child gives notice in writing within 42 days—or in Scotland, within 21 days—after the birth of the child that the man is to be the father, then the man is to be treated as the father of the child, for the purpose of birth registration alone. That applies whether the assisted conception treatment of the woman was in the UK or elsewhere. Clause 39(1)(d) encompasses the right of the woman to choose to record the man on the birth certificate, which is symbolic. The man will be deceased, and that is why the woman has the right to choose.

The difference between Scotland and England and Wales is connected to birth registration, which is a devolved matter. The provision in the Bill reflects the fact that the standard time period in each country for birth registration is different—before the hon. Gentleman asks me, I do not know why, but it is—and it reflects the difference on devolved matters. That is what we are seeking to ensure. It is a standard part of the HFEA’s consent forms to ensure that such consent has been given when embryos and gametes are stored. The measure builds on the Act to which I referred, which I hope clarifies—

John Pugh (Liberal Democrat, Southport)

Will the Minister give way?

Dawn Primarolo (Labour, Bristol South)

I have not concluded my remarks. I was going to give way at the end of my sentence but I have forgotten what I was going to say.

John Pugh (Liberal Democrat, Southport)

I think that the Minister answered my question. I heard her say that the measure is for birth registration purposes only and that it will not affect inheritable rights whatever.

Dawn Primarolo (Labour, Bristol South)

I can confirm that that is the case—the measure is for birth registration. It allows parenthood only to be recorded symbolically on the birth certificate and confirms no other legal status to the father—nor could it—and therefore no inheritance rights for the child. If a father wished to leave some of his estate to his unborn child, he could make that clear in his will. That is how such a situation would be dealt with.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for her response but, unusually, she did not answer one of my points—I may have misunderstood or misheard what she said—on paragraph (d). It appears that a biological father who donated sperm prior to his death could, by the choice of the woman who has the child, never be placed on the birth certificate in the first place. He would therefore not be the father even if he consented for his sperm to be used for the purposes of creating the child. I do not understand what the defence for paragraph (d) is. The Minister explained what it does, but not why, nor why it is in the Bill. If the woman does not choose the biological father to be named as the father, and the mother has not remarried and, therefore, under common law, found a new father, who will be the father of the child?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I remember the debates on the 2003 Act, which began life as Tony Clarke’s private Member’s Bill—many of us remember him. It was predicated on the fact that Diane Blood, in that famous case, was keen to ensure that her late husband’s name could be on the birth certificate, prospectively at least, even if she were to receive treatment abroad. It was the view of the Committee that considered that Bill that the woman should be able to reflect on that issue after the birth of the child. The legislation was designed to provide maximum flexibility to a woman in a difficult situation, who was recently bereaved or who only recently became a mother, so that she could decide whether she wanted to put her late husband’s name on the birth certificate.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the hon. Gentleman for that helpful intervention—it shines some light on the measure. I was in the House in 2003, but the private Member’s Bill to which he referred passed me by. Will the Minister confirm what the hon. Gentleman said, because I did not get the impression that she put forward a defence of paragraph (d)?

Dawn Primarolo (Labour, Bristol South)

I referred to paragraph (d) and the right of the woman to choose to record the man’s name on the birth certificate, and said that it would be symbolic in the sense that it would not convey any further rights.

The hon. Member for Oxford, West and Abingdon asked what needs to happen. Both the man and woman would need to consent to the former’s name being put on the birth certificate. That allows the woman to decide finally whether to do that and gives her the final choice. That is not a right that can be enforced against another without their consent, so if there was not consent, it could not occur.

Clause 40

Dawn Primarolo (Labour, Bristol South)

I beg to move amendment No. 58, in clause 40, page 39, line 15, leave out ‘a’ and insert ‘the’.

The amendment makes a minor drafting correction to clause 40 and is purely technical in nature. It changes the words in the clause to read “the man”, rather than “a man”, as currently drafted. That only recently came to light and was considered the appropriate drafting.

Mark Simmonds (Conservative, Boston and Skegness)

We are getting into the nitty-gritty of the Bill, as the clause relates to the transfer of an embryo after the death of a man who was treated as a father in cases where donor sperm was used. There is a great deal of concern among the public about that, and certainly a large number of people have written to me about the clauses that we are about to discuss. I want to understand two things about the workings of the clause. I will not repeat the arguments that were made on the Floor of the House and in this Committee about the importance of the male in bringing up children, because members of the Committee have different views about that, but perhaps the Minister will explain how subsection (2)(b) relates to clauses 42 and 43 and whether there is an exact mirror and read-over from different-sex relationships to same-sex relationships and from marriages in heterosexual relationships to civil partnerships in same-sex relationships.

It seems to me that clause 40 will enable someone who is not married, has not provided the sperm and so has no genetic relationship with the child and who is not alive to be the parent of that child on its birth certificate. It might be that no intimate relationship at all took place between the two people who would potentially be the parents of that child, whether they are a heterosexual or a same-sex couple.

The context of this and the prism through which we must look at all the debates on these clauses is that the welfare of the child must be paramount. I just question at this stage whether a couple that did not even have an intimate relationship, certainly were not married, might not even have been in a civil partnership, had no genetic contribution to the child’s make-up and are not alive would be appropriate people to have as an official parent of a child, and that is in the context of the importance of the child’s welfare.

John Pugh (Liberal Democrat, Southport)

My concern is about what birth certificates are now intended to do. Normally, they are indicative of someone’s assumption of legal responsibilities or biological connection with the individual named on the certificate, or both. In this case there appears to be a suggestion that the person named on the birth certificate should fulfil one criterion: a previous willingness to take part in an IVF programme with the person whom they pre-deceased. That is a big extension, therefore, in our view, of the role of birth certificates. The Minister said that birth certificates can do something symbolic. I certainly did not realise that. Perhaps there is scope for birth certificates in respect of all sorts of strange, exotic things, but we ought to stick to a more rigid view of what they should do.

What is the Government’s reason for such an obvious and quite definite extension of the use of a birth certificate? What is the thinking behind it? Is it to provide an explanation to the child about their origin? If so, and if the child does not look any further, it would clearly give an inaccurate explanation of the child’s origin. It is obviously preferable to talk about storks and gooseberry bushes, but is putting the child off the scent by not letting them think any further than that they were conceived with the person named on the birth certificate as an agent in some way in the interests of the child? If so, is that obvious?

I accept what the clause does and I am not necessary agin it. However, I see it as extending what birth certificates do and I want to know the Government’s rationale for doing precisely that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I heard what my hon. Friend said and the fair way in which he put it. Obviously, I could come up with an example that was far removed from the intention of the clause and a direct consequence of the 2003 Act. When that was made law, and if it was to apply to a married couple who may have been married for a year, it would have been wrong not to apply it to a couple who may well have been receiving IVF because the man was infertile, but who had been in a non-married relationship for 20 years and, indeed, had had other children before infertility intervened on the man. There would therefore have had to be a parallel provision for unmarried men in the case of deceased fathers.

We must remember that such a provision was sought by Diane Blood, who campaigned hard for it. She was supported by the newspapers that often worry about fatherhood, but they were very clear that it was appropriate in those circumstances. We can always say that that means that such provisions could apply to someone who was not in an intimate relationship, who had known the woman for only a short time, but who had been treated together with her and then died. I do not know whether there would ever be such a case. In the end, we cannot design legislation to fit the most extreme cases.

John Pugh (Liberal Democrat, Southport)

I do not regard the introduction of the Diane Blood case as at all helpful in our discussions. In that case, the name of the father was on the birth certificate and thus would have shown the biological origin. That is what birth certificates have traditionally done in part, although not exclusively.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Birth certificates do not reflect the genetic origin. They reflect the legal father, who is often the social father. Now is not the time to go into the issue of non-paternity, but lots of milkmen, even in Southport, would be very afraid of the implications of genetic fatherhood—if I can use that term in its general sense, even if it is a bit “Carry On”. Birth certificates are not a reflection of genetic parenthood. I am not claiming that he does, but if my hon. Friend wants that to be the case, there would be a lot of paternity tests and a lot of frightened milkmen.

John Pugh (Liberal Democrat, Southport)

I referred to an either/or situation. I am sure that my hon. Friend would accept the proposition that, in the past, a birth certificate traditionally showed people who should take legal responsibility for the child or someone who had a biological connection with the child. We have a proposition where neither of those things happen.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

My hon. Friend is correct. It is a consequence of the 2003 Act. The explanatory notes state:

“Clause 40 makes similar provision to clause 39 for the case when donated sperm has been used.”

He is right to identify the fact that it is the coming together of two slightly incompatible things: first, the wish to ensure that men who are infertile, but treated together with a woman, are treated fairly and equivalently to men who are using their sperm when that is required, which is the general, uncontentious theme of the clause.

Secondly, in significant circumstances, the deceased father should be recognised. Those circumstances have to be met in order to satisfy the need for bereaved women in such situations to recognise the relationship that they had and that had brought about directly or indirectly the birth of the child. However, I accept my hon. Friend’s point. It is a slightly uncomfortable marriage of the two issues, and he is right to draw out the difference. I am keen to say that I support the clause, for the reasons that I have given, although it is a difficult translation of two different provisions.

Dawn Primarolo (Labour, Bristol South)

Clause 40 relates to the registration of a father when a child is born to a woman as a result of the transfer of an embryo created with donor sperm when her husband or unmarried male partner died before the embryo was transferred. It contains two measures, relating respectively to married women and to women who were not married, but had a fatherhood agreement with a man. It enables the child to have official recognition of the father. The clause replaces the existing measure in the 1990 Act and recognises the new provision in the Bill for unmarried couples to have a fatherhood agreement when donor sperm is used.

Subsection (1) provides that if an embryo was created with donor sperm while the woman was married, but her husband died before the embryo could be transferred to her, the man can be registered as the father of the child in certain circumstances: the husband must have consented in writing, and must not have withdrawn that consent, to the embryo’s transfer to the woman and his registration as the father; the woman must have decided within 42 days of the birth of the child, or 21 days in Scotland, that the man will be registered; and there must be no other parent—for example, the child must not have been adopted.

Subsection (2) provides that if an embryo was created with donor sperm through assisted conception in a UK-licensed clinic at a time when the woman was not married or in a civil partnership, but her male partner died before the embryo could be transferred to her, the man can be registered as the father of the child in the following circumstances: the man must have consented in writing, and must not have withdrawn that consent, to the embryo’s transfer to the woman and his registration as the father of the child born as a result. Additionally, immediately before his death, the agreed fatherhood conditions set out in clause 37 must have been in place, the woman have decided within 42 days from the birth of the child, or 21 days in Scotland, and there must be no other father—for example, the child must not have been adopted.

The provisions will ensure equivalence between heterosexual and same-sex couples. The intention is to achieve equality, but the hon. Member for Boston and Skegness is absolutely right to pick up the point that underpinning it is the additional key requirement that under section 13(5) of the 1990 Act, clinics must consider the welfare of any child born before providing the treatment.

The hon. Member for Oxford, West and Abingdon is right that the 2003 Act established that a deceased person could, in certain limited circumstances that I have described, be the parent of a child for the purposes of the birth certificate only. The Bill updates that principle only to reflect equality for same-sex couples. Yes, there is a read-across. The provisions address cases in which a couple has created an embryo using a woman’s egg and a man’s sperm. They provide for the woman to proceed with treatment using an embryo that was created by the woman and her partner as a couple. It does not introduce any new requirements; it brings the equality requirements together, ensuring that the 2003 Act that established the principle follows through. I hope that I have clarified the matter.

Clause 42

Mark Simmonds (Conservative, Boston and Skegness)

I have a couple of examples that the Minister might like to consider overnight so that she can include them in her correspondence tomorrow. However, my first question does not relate to that matter. It is not clear what happens if a civil partner does not consent. Am I to assume that the same applies in civil partnership as with marriage—that, as we discussed earlier, consent is assumed?

I shall give examples of two complexities. First, what happens in a civil partnership in which both partners consent—by implication or otherwise—and the civil partnership is legally separated post-implantation of the embryo and one member of the original same-sex couple marries a man during the gestation period? Is that man the father? Does common law apply in that situation? Is that man therefore the parent?

The second example has the same initial set of circumstances. If there is a legal separation of a civil partnership, but a new and different civil partnership is then put in place, who is the parent? Is it the initial civil partner, when consent was assumed for the implantation to take place, or is it the new civil partner with whom the pregnant woman has entered into a civil partnership? Alternatively, is it up to the pregnant woman to make a choice between the two?

John Pugh (Liberal Democrat, Southport)

It is probably my lack of attention to detail that prompts me to ask this question. The explanatory notes give the idea that there could be two sorts of arrangements: one in which civil partners happily consent to the arrangement, and the other in which only one partner does so. Similar provisions seem to apply to married couples, so the arrangements are equivalent. I understand that, and I know where everyone is coming from on that question. However, that might create problems further down the line for couples and civil partners.

If a child enters into the marriage or civil partnership but is not wanted, one would suppose that duties in relation to the child—whether imposed by the Home Office or others—were shared collectively.

Dawn Primarolo (Labour, Bristol South)

It is not a question of whether a child is wanted; it is about who is mentioned on the birth certificate—that is all. The route that the hon. Gentleman is going down is about a child not being wanted. If there is a separation in a relationship and there are existing children, the question of how the family unit bonds is a matter for the couple. The Bill does not enter into that in any shape or form. Indeed, no legislation enters into the situation when there are stepchildren.

John Pugh (Liberal Democrat, Southport)

I am grateful to the Minister for that clarification. What I think she is saying—I shall tell the Committee and she can say whether I have the gist of it—is that the clause does not alter any other piece of domestic legislation, family law or otherwise, but that it simply relates to the very technical, specific and precise matter of whether someone wants to go on the certificate.

Gary Streeter (Conservative, South West Devon)

The clause is the first in a series of measures giving legal effect to same-sex couples—in this case lesbian couples—having IVF, in some cases on the NHS. I hope that the Committee will forgive me if I make a few comments to suggest why the clause should not stand part of the Bill. In doing so, I am speaking for myself—not for my party or as a Front-Bench spokesperson.

The clause should not be allowed to pass without making some comment to reflect a considerable amount of opinion in the country. As we legislate on behalf of the whole country, it is important that certain opinions are voiced, and I hope to do so in a reasonable manner.

I wish to express concern about the clause and subsequent clauses. Some people argue that because gay adoption is legal, it is only natural that same-sex couples should have the right to equal access to IVF treatment. The clause deals particularly with the birth certificate arrangements in that instance. I certainly understand the argument in terms of equality, but I believe that permitting IVF for lesbian couples is wholly different from lesbian adoption. I say that because when a child is conceived who is later adopted by a lesbian couple, they at least had the chance of having a father and might well have had a father for a certain period of time. That child already exists. We are talking about the state facilitating the process of a child being created who will have no chance whatsoever of ever having a father during the duration of his or her childhood, and the Bill has precisely that effect. Do you want to slap me down, Mr. Hood?

Jimmy Hood (Labour, Lanark and Hamilton East)

No yet.

Gary Streeter (Conservative, South West Devon)

I am grateful.

I do not intend to repeat this speech during our proceedings on the remaining clauses in the cluster. That is why I hope that I can have my say on this clause, which leads us into the other clauses.

In clause 45, we have the chilling words

“no man is to be treated as the father of the child.”

I suggest that those words raise huge questions about child rights that have so far been given no attention in our deliberations. We are talking about two women creating a child who will never have a father. What is wrong with that? All my instincts are against that notion as it flies in the face of common sense and nature. I also believe that many of our constituents do not know that this is taking place through the single-woman route, or that it will be going on once the Bill becomes law. I think that many of our constituents would be puzzled by same-sex couples having IVF on the NHS, given the pressure that the NHS is under.

None of that may be enough to persuade the Committee that the clause should not stand part of the Bill, so let us consider some research on why the matter is so important. Of course, it is our responsibility as legislators to look at evidence and not to rely simply on our own instincts. Surely we must not do anything today that would prejudice the paramount interests of the child in light of the current balance of research. What, therefore, does the research say about how we should approach the subject? An extensive research base unequivocally demonstrates that fathers are important and bring something distinctive to the parenting process that is different from what mothers bring. The Minister might remember that after a few refusals, she allowed me to intervene on Second Reading to ask whether the Government thought there was any difference in the process of a loving same-sex couple—two mothers bringing up a child—and a loving mother and father bringing up a child? Is there no advantage at all in having a father? The Minister was good enough to say that that was not the Government’s position. She must therefore accept that having a father can be important in the circumstances that I have just described—[Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Hon. Members must give the hon. Gentleman the right to have a hearing.

Gary Streeter (Conservative, South West Devon)

Thank you, Mr. Hood.

Fathers bring something distinctive to the party. One can only handle research in relation to children responsibly by concluding that we must assume that the best interests of the child are, on average—although we know of wonderful examples that buck the trend—less likely to be met in the absence of a father. In the light of the very extensive body of research, we have to conclude that it would be wrong of the state to facilitate the deliberate creation of children with the intention that they should be denied the chance of ever having a father for the duration of their childhood, yet that is what the clause does. The body of research is so extensive that I cannot refer to all of it, but I want to cite a few texts. They have not come to me from lobby groups, so I think that my hon. Friend the Member for Salisbury will be happy for me to mention them.

The first document is called “Theorizing the Father-Child Relationship” and it was published in 2004. It states:

“Recent work suggests that fathers play a much larger role than mothers in the socialization of children’s emotions, especially in anger regulation.”

Another report called “Toward Disentangling Fathering and Mothering”—I am not sure who comes up with these snappy titles—states:

“there is support here for the relative importance of fathers’ (as compared to mothers’) support of both sons and daughters. Youth who report feeling supported by their fathers are better able to engage prosocially outside the home...Lastly, positive fathering tends to be linked to lower levels of later depression for early adolescent girls, whereas positive mothering tends to be linked to lower levels of later depression for early adolescent boys.”

In other words, mothers and fathers bring different things to children.

I have similar quotes, but I will give just one more:

“Our longitudinal findings for traditional families seem to point to a unique contribution of the father to the child’s emotional security”.

That is from a report called “The Uniqueness of the Child-Father Attachment Relationship”.

A smaller body of research focuses narrowly on studying same-sex parenting, about which we heard quite a lot on Second Reading. I think that the BMA sent all hon. Members a briefing on the subject, which refers to some findings. The BMA report states:

“A substantial amount of research has been carried out on the parenting skills of lesbian couples. In the early days, research focused upon women who had started a family in a heterosexual relationship but continued to raise their children in a lesbian relationship. More recently, research has concentrated upon lesbian couples who seek to have a child through donor insemination at a licensed fertility clinic”—

as would be permitted by clause 42. It continues:

“Social research on children born to these families has given similar findings to those children born to solo mothers. Their emotional and psychological development is comparable to children born of donor insemination to two heterosexual parents. In fact, the second female parent often has greater parent-child interaction than do the fathers in the heterosexual couples.”

That seems to be very supportive of the parenting skills of two mums, as opposed to a mother and a father. On the basis of that briefing, one might have presumed a supporting reference to a selection of key texts to define that “substantial amount of research”. In reality, however, the statement in question is backed by just one footnote, which cites just one 11-year-old journal article—hardly an extensive research base.

Jeremy Wright (Conservative, Rugby and Kenilworth)

My hon. Friend will tell me straight away if he intends to come on to this issue in his speech. Does he share my concern that as the child of such a practice grows up, he or she will instinctively understand that it cannot be right that both of his or her mothers were the only people involved in his or her conception? Is he therefore concerned about the effect on the child of that realisation and where it may lead?

Gary Streeter (Conservative, South West Devon)

I did not intend to come on to that point in this speech; I made it on Second Reading. However, my hon. Friend is right. I think that I said on Second Reading that that realisation could only add to the turbulence of the teenage years—the self-discovery, the identity crisis that many hon. Members in this Room have clearly gone through and possibly one or two still are. That realisation certainly cannot help, and I am concerned about that.

There is other research on the subject, most of which is linked to somebody called Professor Susan Golombok, whom we heard quite a lot about on Second Reading. She has written extensively and almost exclusively—hardly anyone else seems to write on the subject with the same authority as her. A paper that she co-authored called “Children with Lesbian Parents”, published in the journal Developmental Psychology in 2003, stated that

“it may be the involvement of a second parent rather than the involvement of a male parent that makes the difference.”

Notice the use of the words “it may”. That is hardly conclusive. It could equally be argued that it may not.

In another journal, Golombok et al go on to say that the loss of a parent through relationship breakdown—

Brian Iddon (Labour, Bolton South East)

On a point of order, Mr. Hood. My understanding was that the House had been given a chance to debate the need for a father, admittedly not on this clause. As Chairman of the Committee, are you now allowing a debate on the need for a father, which the hon. Gentleman appears to be reopening? I would welcome your ruling.

Jimmy Hood (Labour, Lanark and Hamilton East)

The hon. Gentleman knows that specific clauses were given permission to be decided on the Floor of the House. The clause that we are discussing now is the business of the Committee. The hon. Member for South-West Devon is perfectly in order when speaking to a stand part debate.

Gary Streeter (Conservative, South West Devon)

Thank you, Mr. Hood. I have nearly finished. I apologise for detaining the Committee for so long, but I think that the voice needs to be heard.

I am talking about the further research of Professor Golombok, who says that perhaps it is just the loss of a parent through relationship breakdown, whether heterosexual or homosexual, that is the real engine for prejudicing the best interests of the child. That is interesting and makes sense, but fails to take account of the fact that the only study of relationship stability within the context of civil partnership arrangements was done in Sweden, where such relationships have been legal since the early 1990s. That study showed that male gay couples are 50 per cent. more likely to break up than married heterosexual couples and that the rate of partnership break-up for lesbian couples is about double that for gay couples. It does not help the argument to postulate that the problem is discordant relationships, because that is much more likely to face the children who, sadly, might be coming into existence as a result of clause 42.

Dawn Primarolo (Labour, Bristol South)

Does the hon. Gentleman accept that what counts in every circumstance is the quality of the parenting? For instance, where children are sent away to boarding school at an early age, they are removed from their parents, but the quality of their relationship continues, even though they are separated for long periods. The constant presence of a particular family mix is not the guiding point in the development of children, but rather the fact they are loved and valued and the quality of their relationships, regardless of the structure of the family.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The Minister is taking a wee bit long over her intervention.

Gary Streeter (Conservative, South West Devon)

I have tremendous sympathy with what the Minister said. She might be interested to know that we did not send our children away to boarding school—

Dawn Primarolo (Labour, Bristol South)

I was not talking about you.

Gary Streeter (Conservative, South West Devon)

Okay. I am saying that because we did not want to be separated from our children, but I take her point. That is why I would rather a child was placed for adoption with a gay or lesbian couple than left in local authority care, because the presence of two nurturing parents for that child has to be better than local authority care.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman argued in part that because certain relationships were more likely to break down than others, people in such relationships should not be allowed to be parents—at least through NHS provision. Perhaps he is arguing against the clause standing part. Yet that is the only area that he is choosing. Let us say that one part of the country was found to have, on average, a greater rate of relationship breakdown—say, Devon. Would he argue against IVF being provided by the NHS in Devon? If poor people had a higher rate of relationship breakdown, would he use the same argument? How can he say, because there is a general issue in Sweden, that that is translatable into policy applying to everyone in that situation?

Gary Streeter (Conservative, South West Devon)

I am not saying that of course. I am asking whether the state should be facilitating the creation of a child, from a same-sex couple, who will never have a father. Is that what we should be doing? Is that what we should be doing without consulting our constituents widely? The reference to Sweden was simply to make the point that the studies that Professor Golombok produces are open to challenge. However, I shall not go into further detail, because we have only a few moments left before we are required elsewhere.

When the Minister replies, she may talk about human rights. I understand the human rights position, but I believe that the balance of human rights between two adults who want a child and the human rights of the child yet to be born can be broadly weighed equally. Having looked at the matter fairly carefully, I do not think that a successful challenge could be brought under human rights legislation. As the Minister will know, IVF for same-sex couples, or even single people, is prohibited in France, Italy, Germany, Austria, Switzerland, Norway, the Czech Republic and Portugal, all of which have signed up to the European convention on human rights. That we have incorporated the convention into UK law is not important—it is the same set of values and rights as those countries also embrace, and they do not have a problem with human rights. There are members of the Committee who think that perhaps I am on a flight of fancy. I am saying that on this, the UK is out of step with most of our European colleagues.

I have two more points to make. The first is that fathers are important and clause 42 takes us in the wrong direction. Over the last week or so, a very nice White Paper has been produced by the Secretary of State for Work and Pensions and the Secretary of State for Children, Schools and Families. It says:

“Fathers’ involvement in their child’s life can lead to positive educational achievement, a good, open and trusting parent-child relationship during the teenage years and reduce the risk of mental health issues for children in separated families. Engaging fathers around the time of their child’s birth, including through being registered as father, is important in establishing that close involvement.”

The Government are promoting fathers on the one hand, but through this legislation they are, in my opinion, condemning some children in the future to never having had a father. The Committee should consider that extremely carefully. On that point I will sit down.

Desmond Turner (Labour, Brighton, Kemptown)

I hope that the Committee will resist the hon. Gentleman. For one thing, if he was successful and the Committee did not agree that clause 42 should stand part, it would not prevent the provision of IVF to a lesbian couple. The clause deals with how the other member of the couple is to be referred to and that is all. As to the principle that he has been expounding, the House dealt with that at length, and it was very heavily carried on a free vote. The amendment demanding the need for a father in those circumstances was soundly defeated. It is not reasonable to try and circumvent that decision in this way on this clause and in any event, it would not have the effect that he desires of preventing IVF treatment for lesbian couples.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We had this debate to some extent on Second Reading and in the Committee of the whole House, and I am not going to repeat the points that I made there. However, I want to make three brief rebuttals in support of clause stand part. First, what the Government seek to do is absolutely right and it does not need to be done on the basis of human rights. I have never argued that it is anything to do with human rights. It is about allowing families to get on with their lives without the state intervening to block them from doing so.

We are in an interesting political situation. I do not mean to be party political, but there is an issue of the state not interfering too much with consenting adults, and then some people in Parliament argue that the state should specifically deny and interfere with certain family arrangements. If we are going to do that, there must be good evidence for doing so. The other side does not need the evidence; the burden of evidence falls on those who wish to discriminate and in this case, there is no good evidence that can be adduced. However, the evidence that the hon. Member for South-West Devon has attacked—in moderate terms, I accept—from Professor Golombok and others, is good evidence. The evidence that the hon. Gentleman cites does not relate to the sorts of families we talk about. Indeed, in his quotes from a book and a report there was no read-across between lesbian couples and other families. The arguments against the measure fail at the first hurdle. They fail to demonstrate that there is any basis on which to discriminate in a positive way. There is no evidence that children do better with heterosexual couples than with same-sex couples.

Secondly, the comparisons that are made in the work of Professor Golombok, formerly of London university, now of Cambridge university, are correct. They compare heterosexual couples and their children with same-sex couples and their children and show that there does not appear to be any problem. These people are academics; they do not say that there are definitely no problems and therefore the policy is this. It is right to point out that they use the word “may”, but in so far as they draw conclusions, they do not find that these children have any particular problems, and they have now looked at them, albeit in small numbers, for quite some time.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was saying that, first, the onus should be on the discriminators and the interferers to show that there is a problem with families of same-sex couples, but there is no evidence showing that there is, and, secondly, the evidence that the children do well is good, but I will not go into that.

I wanted to take issue with the argument made by the hon. Member for Rugby and Kenilworth, who is not in his place, that somehow having lesbian parents is not going to help with the turbulence of teenage years—a view that the hon. Member for South-West Devon agreed with, but I think is wrong. The only problem that can be specific to those children is that they might be bullied. The best approach to that is to stop the bullying, not to deny those who would be bullied the chance to live. That is an argument for saying that mixed-race children should not be allowed to be born because they might be bullied. It is an argument—I am not saying that the hon. Member for Rugby and Kenilworth was saying that.

The Golombok research shows that, despite any bullying that might take place—I hope that there is little of it now—and despite any feelings that the hon. Member for Rugby and Kenilworth in an intervention attributed to them, those children do very well and are psychologically well adjusted. It cannot be argued that having lesbian parents cannot help with the turbulence of teenage years. I respect the way in which the hon. Gentleman made his case, which he is entitled to do. I am not implying that he is motivated by prejudice, for example, but I think that his arguments are wrong.

Finally, even if it could be shown—I do not think that it can be—that, on average, children in these families do worse, that is not an argument for not allowing the families to exist and for the children not to be born. That is not simply for the reason that it must be better to be born, but if one argued that people had such a hard time that it would be best not to be born, where would it end?

We know that, sadly, on average children from poor backgrounds do not do as well as children from wealthy backgrounds. There is evidence for that. Yet, through the NHS, the state provides IVF for such families, despite that average outcome. I am not for one moment suggesting, and I do not think that the hon. Gentleman would suggest, that clinics should have to consider the need for two incomes or that the birth certificate arrangements in clause 42 should apply only to better-off families, because children from poor backgrounds do worse on average—although some do very well—than children from better-off backgrounds. Even if he could make the case that he is seeking to make, which he cannot, it is not an argument against the measures, and that is even before we deal with the human rights and discrimination issues. Therefore, I urge the Committee to support the clause as it stands.

Dawn Primarolo (Labour, Bristol South)

I shall start by referring to the provisions in the clause and then respond to the hon. Gentlemen’s contributions. Clause 42 makes provision for bringing the arrangements for female civil partners in line with those for married couples. Where a female civil partner gives birth to a child conceived as a result of donor insemination, she is the mother of the child and her civil partner will automatically be the other parent, unless she did not consent to the mother’s treatment. The terminology of the clause is different, as it seeks to bring civil partnerships within the sphere of the legislation, but otherwise the legal provisions are the same as for married couples.

I shall return to this point, but the hon. Member for Boston and Skegness would seek within a short period of time—nine months maximum—to conflate a range of relationships that may change who is the parent with legal responsibility. We have accepted provision for married couples and we are making the same provision for same-sex couples in line with the civil partnership legislation. There cannot be any points of principle on that, because civil partnership legislation has been passed by the House. It is not about whether we had a discussion on the Floor of the House on the need for a father, but a recognition that the House has accepted partnerships and civil partnerships in legislation.

The hon. Member for South-West Devon advances an argument that is not supported by the majority of the House, in discussions on not only the Bill but civil partnerships and other legal status, and the Finance Bill, which recognises civil partnerships as equivalent to marriage for tax responsibilities. Therefore, as he acknowledged, he holds a minority view. He put it powerfully, but I absolutely disagree with him on every point. He advances the argument that there is a diminution of the quality of parenting if the parents are not of a particular family type, namely heterosexual, married and constantly there. Regrettably, not just now in modern Britain, but throughout many centuries, family structures have not followed the model that the hon. Gentleman believes is best. Legislation reflects what the House has decided that the make-up of modern Britain is.

Gary Streeter (Conservative, South West Devon)

I may be wrong, but I do not believe that I mentioned the word “married” even once in my speech. If I did, it was not the main thrust of my argument, which was about the state facilitating a situation in which a child is denied the prospect of having a father, as a matter of state policy. That is what I am challenging.

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman is absolutely wrong in his assertion that the clause, in recognising civil partnerships, seeks to do that. I regret to tell him that the presence of a father within a family structure does not necessarily mean that he is actively engaged in the upbringing of his children. The Government position is that, in recognition of the legislation, all parents have responsibilities to their children, and that the quality of parenting is crucial. The clause adds a second legal parent; it does not take away status or say that there is not another individual in the child’s genetic make-up. That is why the right for a child aged 18 to know who are the donors is crucial.

I do not wish to rehearse it. The hon. Gentleman has made his case twice. He bases his argument on a preferred model without evidence that quality of parenting is crucial. He and other Conservative Members have described families in crisis or experiencing breakdowns and sought to say that that applies to all.

The hon. Member for Rugby and Kenilworth commented in an intervention on what is recorded on the child’s birth certificate. I was taught, and I am sure that every Committee member would concur, that honesty is always the best policy. The best relationships between children and their parents are built around honesty. It is important that children should be told by their parents at an early age that they were donor conceived; that is recognised to be beneficial to the children. That is why the Government support and promote the Donor Conception Network’s “Telling and Talking” project. Hon. Gentlemen may continue to advance their case if they want, but a majority of the House substantially disagree with their view. Having passed legislation on the matter, it is necessary that we ensure that future legislation complies with the House’s views.

The hon. Member for South-West Devon quoted the White Paper, saying that it showed that the Government were doing two different things. I do not agree. It comes back to the point, which is made in the White Paper, that fathers—and, the provisions ensure, parents—take responsibility for their role through participation in their children’s upbringing, in this case by registering the birth with the mother. That is exactly where we should be.

The hon. Member for Boston and Skegness asked a couple of questions and gave examples. Is he seriously suggesting that between conception and birth, several legal partnerships will be entered into, dissolved and re-entered? The first point that must be made is that counselling is given before IVF treatment, during which it is crucial that the welfare of the child is considered. That includes parents with a stable relationship who are committed to the child’s upbringing. As I said in my opening remarks, the clause introduces the same measures that have operated for married couples so far, and I do not remember any complaints about them. To answer his scenarios, I hope that he is not suggesting that we should treat same-sex couples differently, given their legal status under civil partnership legislation.

The hon. Gentleman also asked what would happen if assisted conception took place within a civil partnership and then, within the short period after all the processes are gone through and before the baby is born, the civil partnership is dissolved and the mother marries. It will be presumed that the husband is the father, but that presumption is rebuttable—this is the same point as in our discussions on previous clauses—by DNA testing. Because clause 42 would apply, the original civil partner would be the other legal parent. This comes back to the fact that in deciding to become parents, the individuals need to recognise that they have a responsibility as parents that will endure, but which under certain circumstances could be rebutted.

If the civil partners have an assisted conception and then enter into a second civil partnership, that will not affect the original arrangement. As in the first example that the hon. Gentleman gave, the original civil partner will be the other legal parent by virtue of clause 42. This is about recognising the point at which the decisions are taken and I have covered the importance of that issue.

The hon. Gentleman also asked about what happens if the civil partner does not consent. In that case, they would not be the legal parent of the child because the consent would be presumed unless evidence was shown to the contrary. Of course, these are complex relationships in terms of law and reflecting on what is necessary to produce an outcome on who has the legal responsibility. While I acknowledge the strong feelings of the hon. Member for South-West Devon, with which I do not agree, I have given most of my remarks in this debate in relation to what the clause does, as opposed to the wider principle.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for responding to the points that I made. I accept that the examples that I gave in relation to this clause and the previous clause are unlikely and complex. Nevertheless, it is the Committee’s job to scrutinise and to make sure that the law is robust enough to cater for all potential circumstances. I noticed from the flurry of papers that was being exchanged while I was asking my questions that this was perhaps something that had not been considered before, so I do not regret asking these particular questions. The answers have demonstrated that differences exist between how the law is structured for same-sex couples and for different-sex couples, and that while the new husband in the heterosexual couple will be the father of the child, the original civil partner will be the other partner on the birth certificate. It was quite right to extract that information from the Minister. I say to her that I was not trying to demonstrate any prejudice, or whatever word she might like to use, as regards the differences between heterosexual and same-sex couples. Indeed, if my hon. Friend the Member for South-West Devon chooses to vote against the clause, I shall not vote with him.

Clause 45

Tom Clarke (Labour, Coatbridge, Chryston and Bellshill)

I rise to speak to amendment No. 154, in clause 45, page 41, line 4, leave out subsection (1).

It is a great pleasure to speak under your chairmanship, Mr. Hood. I expressed most of my views under your predecessor, Mr. Gale, and therefore I shall be very brief.

Tonight, in common with other Members, I have had the opportunity to be at other important House of Commons events: meetings of the Administration Committee, the all-party group on learning disability and so on. I note that there are no cameras from the Daily Mail and the BBC showing a fairly well attended Committee. A photograph was published of the Chamber on the day on which I last spoke in Committee. It was taken during the debate on knives, and the media said that only 16 Members “bothered to turn up” to that debate. I hope that some day the media will recognise the marvellous work that you chair, Mr. Hood, and the fact that hon. Members make a contribution in such Committees.

I tabled amendment No. 154 to give the Committee the opportunity to have the kind of debate that we have just had. With the greatest respect to my hon. Friends, it might well be that the hon. Member for South-West Devon does not have much support in this Committee, but he has overwhelming support in my constituency. I think that it is perfectly fair that that view is expressed.

Clause 45(1) states:

“Where a woman is treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child.”

I find that quite chilling. When I served on the Committee that considered the Bill that became the Children Act 1989, it was accepted that the rights of the child were paramount. In all honesty, I have not seen that as a theme in our debates throughout our consideration of the Bill. As for prejudice, that is an unfortunate word that does not apply to the views that were expressed in the Committee today.

I think that there is an obligation to the child. We were entitled to ask today what was in the best interest of the child. We discussed entirely and exclusively what many regarded as the rights or otherwise of adults, but not those of the child. The reason why I tabled the amendment was that I felt—and still do feel—that far more focus ought to be given to the rights of the child and their future after they are born. I do not agree with the majority of hon. Members on this matter, although I accept that a view was taken by the House. I also acknowledge that the Prime Minister accepted that there would be a free vote. In that spirit, I have expressed my view. It would have been less than courageous not to have said to the hon. Member for South-West Devon that he has support in parts of the House and elsewhere in the country. I have no desire to move the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Does the right hon. Gentleman not wish to move his amendment?

Tom Clarke (Labour, Coatbridge, Chryston and Bellshill)

We have had a reasonable debate and it is probably wise not to do so.

Jimmy Hood (Labour, Lanark and Hamilton East)

The amendment is not moved.

The rest of the debate is in Hansard.