Human Fertilisation and Embryology Bill [Lords]

Public Bill Committee, 12 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) - Further written evidence to be reported to the House

Clause 46

Mark Simmonds (Conservative, Boston and Skegness)

I have one quick question. The clause deals with civil partnerships and it mirrors clause 39, which deals with heterosexual partnerships and the use of a man’s sperm after his death. My understanding of clause 46 is that a woman who was not in a civil partnership—and might therefore not be in an intimate relationship with a women receiving treatment—who has no genetic link to the child, and who is also dead, can be named on the birth certificate as the second parent. Is the Minister comfortable with that?

Dawn Primarolo (Labour, Bristol South)

Under the clause, through assisted conception in a United Kingdom-licensed clinic at the time when the woman was not in a marriage or a civil partnership, but her female partner had died before the embryo could be transferred to the woman, the female partner could be registered as the parent in certain circumstances: when, immediately before the female partner’s death, the agreed parenthood conditions under clause 44 were in place; when the female partner had consented in writing, and had not withdrawn that consent, to the transfer of the embryo to the woman and to herself being registered as the parent of the child born as a result; when the mother decided within the 42 days in England and Wales, and 21 days in Scotland, to register that on the birth certificate; and when no else was treated as a father or parent of the child under the provisions of the Bill, or under adoption or legitimacy law. Such circumstances reflect the position of married couples. Yes, I am satisfied that one clause mirrors the other—and no more.

Clause 47

Mark Simmonds (Conservative, Boston and Skegness)

I shall again be quick. It would be helpful if the Minister would put her views on record. We talked about sperm donors under early clauses and this clause relates to egg donors. Can the right hon. Lady confirm that a record is kept of egg donors by the Human Fertilisation and Embryology Authority and that those who have benefited will have a right to discover who the egg donors were at the appropriate age? Will it be ensured that the information available for those aged 16 and 18 absolutely mirrors that in relation to sperm donors?

Dawn Primarolo (Labour, Bristol South)

I am happy to say yes. The hon. Gentleman is correct. The clause gives the access that he described, and it would have to, because the treatment would take place at a licensed clinic that was subject to requirements to trace the donor.

Clause 48

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 159, in clause 48, page 43, line 4, leave out paragraph (b).

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment No. 160, in clause 48, page 43, line 9, leave out paragraph (b).

Mark Simmonds (Conservative, Boston and Skegness)

I acknowledge that the proposals are probing amendments to elicit from the Minister the logic behind the clause, under which a deceased person is to be treated as the father for the purposes of being named on the birth certificate, but for no other reason. Will the right hon. Lady explain what the clause is trying to prevent? Presumably, the deceased person will be the biological father in some instances, so would not normal inheritance circumstances occur? The Minister was right to mention the other day that if someone wanted to leave something after their death to a subsequent child, they could do so in their will. That explains how someone can circumvent the problem, but not why the clause is in the Bill. For those members of the Committee who want to follow this argument, the two parts of the clause that I am particularly referring to are subsections (3)(b) and (4)(b). I would be grateful if the Minister explained the intention behind them.

John Pugh (Liberal Democrat, Southport)

The clause refers to someone being treated as a father for no other purpose. Elsewhere in the Bill, we read the simple phrase “treated as father”. Does the expression—

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Is the hon. Gentleman making an intervention?

John Pugh (Liberal Democrat, Southport)

I am supporting the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

Had the hon. Member for Boston and Skegness finished moving the amendment?

Mark Simmondsindicated assent.

John Pugh (Liberal Democrat, Southport)

I want to know whether the expression “treated as father” carries the same meaning throughout the Bill, given that it is qualified in this context. The Minister has explained that when we were talking about someone treated as a father, we meant treated as a father purely for the purpose of recognition on the birth certificate. There is some inkling in this context that it means something different in certain circumstances, so I seek clarification.

Dawn Primarolo (Labour, Bristol South)

The Bill replaces and extends the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. We have returned to this point several times as we have gone through the latter clauses in the Bill. The 2003 Act provisions are re-enacted in clauses 39 and 40. Clause 39 relates to the use of a man’s own sperm to create a child with his consent after his death, while 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 male partner was alive and the man dies before the embryo is transferred. Clause 46 extends the provisions to same-sex couples, whether they are in a civil partnership or not, to mirror other provisions. We have had that discussion.

The provisions allow for a man, or a female intended parent, to be recorded in the register of births as a father or parent, but otherwise not to be treated as the legal parent for other purposes in law. The Human Fertilisation and Embryology Act 1990, as originally drafted, did not allow for deceased men to be treated as fathers of children conceived after their deaths. That position was based on the recommendations of the Warnock report and concerns that that might prevent the winding up of a person’s estate if children were born years after their death. In a well known case, of which the hon. Member for Boston and Skegness is aware, there are now several such children. The fear in the Warnock report was that an estate could never be wound up because people would have to wait on whether genetic material from the deceased man meant that any future children could have a claim on the estate.

The 1990 Act was amended by the 2003 Act, a private Member’s Bill piloted through the House by my hon. Friend the Member for Birmingham, Hall Green. That Act allowed a man to be treated as the father for the purpose of birth registration—the matter now under consideration—and for no other purpose, such as decoupling from concerns over the winding up of an estate. That represents a pragmatic and fair approach.

The probing amendments tabled by the hon. Member for Boston and Skegness would remove the subsection that ensures that no further legal status is assigned to those parents. They would have only the symbolic effect of their name being recorded on the birth certificate. I do not think that he will want to do that. On reflection—given the questions that he has asked and the fact that he says that these are probing amendments—I think that he will believe, as the Government do, that it is right, even with explicit consent, that full legal parenthood should not be conferred on a deceased father or parent in relation to children born following their death.

The hon. Member for Southport asked what is meant by the phrase “treated...as the father”, which is used throughout the Bill. It has a specific meaning in relation to clause 48. The term is used to mean treated as the father under the law. When the term is used in a more limited sense elsewhere in the Bill, that fact is expressly conveyed. That is why it is necessary at this point, in a cross-reference to the 2003 Act, to say that it is only for the purposes of registration, which is what we are discussing. It ensures that there is no inadvertent opening up of issues to which the House has already agreed.

John Pugh (Liberal Democrat, Southport)

Is the Minister saying that in a prior clause, or as a qualification in this clause, that the expressions “treated...as the father” or “treated...as a parent” have the general meaning of a parent in law—a father in the legal sense—except when expressly qualified in the legislation?

Dawn Primarolo (Labour, Bristol South)

Yes, that is the case, because of the unique circumstances being dealt with in the clause with reference to the 2003 Act. I hope that I have reassured both hon. Gentlemen that the provision is tightly drawn for a good reason. On reflection, I know that they will agree.

Mark Simmonds (Conservative, Boston and Skegness)

The Minister has answered the point thoroughly and with great clarity. The point about it not being possible to wind up the estate many years after the person’s death is the ultimate reason for the provision. That seems to make sense, so I beg to ask leave to withdraw the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss Government amendment No. 60.

Mark Simmonds (Conservative, Boston and Skegness)

I wish to lift a little more information about the amendments from the Minister. I understand that they relate to circumstances in which written consent was not required as the parties believed themselves to be in a civil partnership or marriage, but later discovered that the marriage or the civil partnership was invalid. Am I right that the amendments apply to marriages as well as civil partnerships, or only to civil partnerships? What is the basis for an invalid civil partnership? Presumably, it is not the same as a void marriage.

Dawn Primarolo (Labour, Bristol South)

These are consequential amendments related to other Acts, including the Legitimacy Act 1976 and the Family Law Reform Act 1987. They relate to the legitimacy of children born by assisted conception to civil partners and are intended to bring the rules into line with those for married couples.

Since the Bill was introduced, it has been identified that although a child born to a same-sex couple that later entered into a civil partnership would be treated as legitimate in law for all purposes, a child born to civil partners would be treated as legitimate in law only for the more limited purposes set out in statute. For example, many family trusts create classes of beneficiary limited to the lawful issue: the legitimate child of the settlor. That anomaly will operate in the cases before us unless we correct it by means of the amendments.

The amendments are tightly drawn to correct that unintended consequence by making a clear statement that a child born to civil partners will be treated as legitimate in law for all purposes. That comes back to the point raised by the hon. Member for Southport, who asked me to distinguish between a parent or a father elsewhere in the Bill, as opposed to in the clauses before us. The issue is the flip side of the debate that we have just had, and the example that we would use would be trust law.

Provision is already made—there is an equivalent—in clause 49, which we are coming to. That clause sets out the test that is applied when there is a void marriage or civil partnership. These clauses are interlinked to reinforce the point. I hope that that clarifies the hon. Gentleman’s point.

Clause 50

Clause 52

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 175, in clause 52, page 44, line 34, leave out subsection (2).

This is a probing amendment, which is intended to elicit from the Minister the compelling reason behind the provisions on late registration. First, will she clarify whether it is common for people to take more than 42 days to register a birth? Secondly, is the defence applicable only where there has been non-partner IVF treatment, or can it be used by everyone and in other circumstances? Finally, will the Minister explain the circumstances in which more than 42 days would be required to register a birth and why that might be necessary? It would make sense if there were medical reasons—the mother might, for example, be in a coma. If there are other circumstances, however, it would be helpful to establish what they are, and the reasons for them.

Dawn Primarolo (Labour, Bristol South)

The clause extends further the 2003 Act. As the hon. Gentleman mentioned, the provisions allow for the extension of the period during which the mother may elect that her deceased partner should be treated as her child’s father or parent for the purpose of birth registration, with the consent of the relevant Registrar General. That is unchanged from the 2003 Act, apart from the incorporation of references to same-sex couples; the provision operates in the same way as it would for an application for delay of registration under the 2003 Act, but is extended to same-sex couples.

The period of time could be extended only if the registrar was satisfied that there were compelling reasons. For the purpose of the clause, in the event that after giving birth the mother was unable to register the birth within the statutory period—an example would be that her ill health prevented it—she could be granted an extension of the period in which to register. That is based on the fact that it would clearly be more appropriate for the mother to register the birth than for someone else to do it on her behalf, in that fewer mistakes would be likely to be made. That is the basis for the registration requirement with respect to the mother; the provision maintains that link.

The registrar must, however, be satisfied, and the ill health in question must be something that would absolutely prevent the mother from registering the birth. I recall reading, and will check the figures, because I do not have them with me, that thus far, for married couples—obviously we cannot say what happens with same-sex couples, because they will not get the relevant right until the Bill receives Royal Assent—there have been very few late applications. I have a figure in mind of fewer than 20.

The reason why we know the figures is that the registrar has referred such matters upwards, because they are exceptional, and has requested advice. Such instances are rare; it is expected that they will arise only in exceptional circumstances. It will not be a matter of inconvenience, or something like a cold, preventing registration; it will be the same rules for everyone, in exceptional circumstances.

Mark Simmonds (Conservative, Boston and Skegness)

To be absolutely certain, will the Minister confirm that a compelling reason would not be the mother’s indecision, for more than 42 days, about who should be named on the birth certificate?

Dawn Primarolo (Labour, Bristol South)

It is my understanding that that would not be a compelling reason, but perhaps I may enter a caveat. If we are back to scenarios that might arise, there might be a complication of reasons, such as a combination of extreme distress that one’s partner had died, a difficult birth and, as a consequence, mental or physical health matters impinging on the mother’s ability to start her life again and register her child. However, one must be absolutely precise. Whether to put the father on the birth certificate might be part of that situation, but the case that the hon. Gentleman mentioned, of thinking, “I am not quite sure; I need a few more days to think about it,” would not be enough. That would not be acceptable. To my knowledge, that is not how it has operated until now and there is no reason to believe that it should change.

Mark Simmonds (Conservative, Boston and Skegness)

The Minister has clarified the points that I wanted raised and I beg to ask leave to withdraw the amendment.

Clause 53

Dawn Primarolo (Labour, Bristol South)

I beg to move amendment No. 61, in clause 53, page 45, line 16, at end insert—

‘( ) the Schedule to the Population (Statistics) Act 1938 (c. 12),’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss Government amendments Nos. 104 and 62.

Mark Simmonds (Conservative, Boston and Skegness)

On a point of order, Mr. Hood. Perhaps we could have a point of clarification from the Chair. I want to understand why Government amendment No. 104 is detailed under clause 53, when in fact it is an amendment to schedule 6.

Jimmy Hood (Labour, Lanark and Hamilton East)

I thank the hon. Gentleman for his question. It is a matter of selection. The amendment was deemed relevant to the debate, and that is why it has been selected.

Dawn Primarolo (Labour, Bristol South)

The Bill sets out the provisions regarding legal parenthood for same-sex couples following assisted conception. The provisions allow for the female partner of the woman giving birth, whether in a civil partnership or not, to be entered as a parent at birth registration—that is a debate that we have had over a series of clauses.

Something else happens at birth registration, which is why there is a cross-reference with legislation in other clauses. At birth registration, some statistical information is collected under statute by the registrar. It relates to the mother’s and father’s ages and, if they are married, the date of marriage, whether the mother has been married before and the number of children born to the mother. The information that the registrar is required to collect is set out in the Population (Statistics) Act 1938. As a result of the measures in the Bill, the questions asked when registering the birth require amendment, as the existing wording would be inappropriate for same-sex couples.

The amendment makes the necessary changes to the 1938 Act—we were required to do it this way round—in order to allow for the collection of information relating to the age of the same-sex parents and the date of any civil partnership, where applicable, so as to treat same-sex parents the same as other parents. This is a requirement beyond the Bill about the collection of statistics and other things under the 1938 Act and the registration of birth. That is why I presume, as you said, Mr. Hood, that all the references that occur in another clause are put together here for the substantive debate. It is exactly the same principle. It is about recording the information.

Mark Simmonds (Conservative, Boston and Skegness)

Again, this provision is fairly standard fare when a Bill will go on to become an Act and amend previous Acts. I suspect—the Minister may or may not confirm this—that the reason why amendment No. 61 and subsequent amendments were tabled, affecting both clause 53 and schedule 6, is that the 1938 Act was missed off the original list. I am not sure why it is not on the original list in clause 53(5)(a) to (m). Is the Minister absolutely confident that the Bill will not impact on any other Acts? I cannot see anywhere in this clause regulation-making powers to amend other Acts of Parliament—of 1938, 1927 or 1895—to ensure that the provisions are comprehensive and that primary legislation is not required in the future to change Acts that are already in place.

Dawn Primarolo (Labour, Bristol South)

I am as confident as I can be in the outstanding skills of those who took part in the consultation and the pre-legislative scrutiny, those who considered the matter in the other place and the parliamentary draftsmen to ensure that that is the case. They made the position clear to the best of their abilities. However, if it is not clear, there is a power in clause 64 to make consequential amendments. Therefore, there is eventually a loop back. We have attempted to ensure that there is a failsafe, but I am as confident as I can be.

Clause 54

John Pugh (Liberal Democrat, Southport)

I beg to move amendment No. 161, in clause 54, page 45, line 41, leave out ‘made by two people (“the applicants”)’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following amendments:

No. 162, in clause 54, page 45, line 42, after second ‘the’, insert ‘applicant or’.

No. 163, in clause 54, page 46, line 1, after ‘not’, insert ‘the applicant or’.

No. 164, in clause 54, page 46, line 4, after first ‘of’, insert ‘the applicant or’.

No. 165, in clause 54, page 46, line 7, leave out subsection (2) and insert—

‘(2A) An application for a parental order may by made by—

(a) a couple or

(b) one person who is not married or a civil partner.

(2B) In this section, a couple means—

(a) a married couple or

(b) civil partners or

(c) two people (whether of different sexes or the same sex) who are living together in an enduring family relationship and who are not within the prohibited degrees of relationship to each other.

(2C) A parental order may be made on the application of one person who is married or is a civil partner if the court is satisfied—

(a) that the person’s spouse or civil partner cannot be found,

(b) the spouses or civil partners have separated and are living apart and the separation is likely to be permanent, or

(c) the person’s spouse or partner is by reason of ill health, whether physical or mental, incapable of making an application for a parental order.’.

No. 166, in clause 54, page 46, line 13, after first ‘the’, insert ‘applicant or’.

No. 167, in clause 54, page 46, line 17, after second ‘the’, insert ‘applicant or’.

No. 168, in clause 54, page 46, line 18, after ‘applicants’, insert

‘(or in the case of a single person, the applicant)’.

No. 169, in clause 54, page 46, line 20, after ‘applicants’, insert

‘(or in the case of a single person, the applicant)’.

No. 170, in clause 54, page 47, line 10, after ‘by’, insert ‘a single person or by’.

John Pugh (Liberal Democrat, Southport)

I have the challenging job of moving an amendment tabled by my hon. Friend the Member for Oxford, West and Abingdon, which I will endeavour to do relatively briefly.

Dawn Primarolo (Labour, Bristol South)

Much more briefly.

John Pugh (Liberal Democrat, Southport)

Indeed. I preface this by saying that my hon. Friend and I do not see eye to eye on many issues in the Bill, but I am doing this in a spirit of charity and comradeship and not necessarily because I see it as anything other than a probing amendment to which the Minister may want to respond.

Before I discuss the amendment, I have a brief observation about the whole clause. Throughout the previous part of the legislation, when we were trying to tease out the rights of the person who has given non-genetic material—cytoplasm—to the IVF process, we rigidly defined motherhood along the lines of child bearing. I have got that clear in my head. The mother is the person who bears the child and not the one who produces the genetic material that forms the child. I understand that. Here, interestingly, we decouple that. We allow it to be decoupled in a way which is probably quite novel. Always under surrogacy, there has been some decoupling. Now we have the clear concept of motherhood being viewed in two different ways by the same bit of legislation.

Returning to my hon. Friend’s amendment, the crucial issue to which I will draw hon. Members’ attention is probably the very first section of parental orders in which he has a objection to the word “two people” and wishes to eliminate “two”. He suggests that now that the concept of supportive parenting has been established, it seems timely to ensure that single parents should have the opportunity to apply for a parental order following surrogacy. He suggests that that would make the law consistent with current adoption law, which allows applications from single people and couples. The amendment that he proposed would bring the legislation in line with the current adoption law.

My hon. Friend’s key point is that when the Bill refers to a couple—a same-sex couple, a civil partnership or a married couple—additional phrasing would allow a couple to be defined in the same way as in the legislation, but he adds to that that one person who is not married or a civil partner is also a potential beneficiary of a parental order. He wishes to stress that his point is purely to make the provision consistent with adoption law.

Dawn Primarolo (Labour, Bristol South)

Surrogacy is a complex area. I shall start by responding to the hon. Gentleman. As far as surrogacy is concerned, the mother who gives birth is the mother. Parental orders, like adoption orders, transfer parenthood after birth. In my view, there is a difference, and I will seek to explain why before asking him not to press the amendments.

Under the 1990 Act, it is possible to make parental orders transferring parenthood only to married couples. The Bill extends the provisions to include civil partners and couples who are not in a civil partnership or married, but who are living as partners in an enduring relationship. A parental order is awarded by a court, subject to the report of the parental order reporter, who visits the parties concerned and prepares a report on whether the provisions of the law are met—for example, whether the woman who carried the child has freely given her unconditional consent.

Surrogacy arrangements are not in themselves enforceable in law, although, when making decisions about whether or not to grant a parental order, the courts will take into account factors such as—as we would expect—where it would be in the best interests of the child to be brought up. The Bill does not extend parental orders to single people. As the hon. Gentleman said, the amendments seek to change that with regard to surrogacy. It is interesting to note that surrogacy has rarely featured in the scrutiny and the debates that have taken place on the review of the 1990 Act and the Bill. Arguments for the change to access to parental orders, which the amendments seek, have surfaced only recently.

Before I answer the specific points, it might be useful to recap by saying that surrogacy is such a sensitive issue, fraught with potential complications such as the surrogate mother being entitled to change her mind and decide to keep her baby, that the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child. There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.

I would say to the hon. Gentleman that there is a difference. His point was that single people are able to adopt and to receive IVF, so why can they not get a parental order over surrogacy? The difference is this: adoption involves a child who already exists and whose parents are not able to keep the child, for whom new parents are sought. That is different, which is why there is no parallel. IVF involves a woman becoming pregnant herself and giving birth to her child—there is not a direct parallel. Surrogacy, however, involves agreeing to hand over a child even before conception. The Government are still of the view that the magnitude of that means that it is best dealt with by a couple. That is why we have made the arrangements that we have.

I am grateful to the hon. Gentleman for raising the debate, but I say to him that in the Government’s view, discussions about surrogacy should be dealt with elsewhere and not by amending the Bill, because the issues involved are complex and the debate has not been properly considered due to its late emergence as an issue in the Bill.

John Pugh (Liberal Democrat, Southport)

The Minister has certainly satisfied me with a thoughtful and reflective response; whether she has satisfied my hon. Friend the Member for Oxford, West and Abingdon I somewhat doubt, but I beg to ask leave to withdraw the amendment.

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 176, in clause 54, page 46, line 16, leave out subsection (4).

The Minister was absolutely right to confirm that this is a complex and difficult area. I was pleased on Tuesday when she reassured the Committee that she would take away the whole area of surrogacy and, as was confirmed in the pre-legislative scrutiny Committee, look at the matter in more detail in the context of the Surrogacy Arrangements Act 1985, which is the foundation from which all current surrogacy legislation flows.

I suspect that the hon. Member for Southport agrees with the position of both the Minister and myself with regard to the amendments that we have just discussed. This Committee is the wrong place to get into a detailed discussion about making the surrogacy legislation even more complex and—to be blunt—confused than it is already. I agree with the Minister that in this particular context, surrogacy is better handled by a couple than by a single individual.

The amendment relates to subsection (4), in which either one or both of the applicants must be domiciled in the United Kingdom or the Channel Islands, or in the Isle of Man. I understand from legal advice that the subsection is inconsistent with section 2 of the British Nationality Act 1981, which states that a person born outside the UK is a British citizen if, at the time of his or her birth, his father or mother is a British citizen, other than by descent. This may be a very difficult area that the Minister cannot respond to now, but it would be helpful is she could explain in writing how the Bill and the Act are reconciled. If they are not reconciled, why is section 2 of the British Nationality Act not being amended to take account of the fact that both applicants must be domiciled in the United Kingdom? That appears, at least on the surface, to be in direct conflict with section 2 of that Act.

Dawn Primarolo (Labour, Bristol South)

Under the 1990 Act it is possible for parental orders to transfer parenthood only to married couples. We are extending the provisions to include civil partners and couples who are not civil partners or married, but who are living together in the enduring family relationship to which I referred earlier. I am informed that there are about 50 lawful surrogate arrangements a year through applications for parental orders. That indicates to me that in the current system, the conflict with the Nationality Act that the hon. Gentleman refers to does not appear to have been raised, but as he has brought up that issue I shall go back and check, and write to him as quickly as I can. I have a feeling that if there was a conflict, we would have known about it by now through the interaction of the two Acts, but it is possible that there is a problem and I will certainly look at that. I am grateful for his probing amendment.

Mark Simmonds (Conservative, Boston and Skegness)

I am pleased and grateful that the Minister has confirmed that. On that basis, I beg to ask leave to withdraw the amendment.

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 177, in clause 54, page 47, line 13, after ‘wife’, insert

‘who, in the case of couples who are neither married nor in a civil partnership, must have been in a relationship for a minimum period of twelve months.’.

The amendment would insert a provision whereby couples who fall within the category in the clause but who are not married or in a civil partnership must have been in a prior relationship, and would stipulate a minimum time period for that relationship. Some hon. Members may feel that it is nit-picking, but I draw their attention to the differences between various provisions of clause 54. Subsection (2) refers to an “enduring family relationship”, but subsection (11), the retrospective provision, makes no reference to it. Is that a drafting oversight, or is there a specific reason why an enduring family relationship is not relevant for those trying to obtain retrospective parental orders under the Bill that they could not obtain under the 1990 Act?

Another point that I wish to make—I hope to catch your eye if we get to a stand part debate, Mr. Hood—is that greater clarification seems to be needed of what an enduring family relationship is. As has been said, there is absolutely no necessity for a couple, whether same-sex or different-sex, to be in an intimate relationship to get the benefit of many of the clauses that we have discussed. I am trying to establish why there is a difference between subsections of the clause, and particularly why subsection (11) does not state that an enduring relationship is a fundamental requirement for getting a parental order.

Dawn Primarolo (Labour, Bristol South)

I can see that you are following what the hon. Gentleman says as closely as I am, Mr. Hood, as we go delicately through these important issues. Most of us were listening intently. [Interruption.] I was. It is very important, and I want to understand exactly what the hon. Gentleman is saying, although the tone of my voice made me sound as though I did not mean it.

Clause 54 relates to how parenthood may be transferred by a court order when a woman has carried a child as a surrogate on behalf of a couple who cannot have children themselves. Under the 1990 Act, parental orders transferring parenthood can only be made for married couples. As I have mentioned, the Bill extends the provision to include civil partners and couples who are not married or in a civil partnership but who live as partners in an enduring family relationship, which is what the hon. Gentleman’s questions deal with.

When the 1990 Act was introduced, it included a provision allowing married couples who had had a child through surrogacy before the Act came into force to apply retrospectively for a parental order. The Bill mirrors that by including a similar provision for people who were not entitled to apply for a parental order before because they were not married. They must apply within six months of clause 54 coming into force.

The hon. Gentleman’s amendment would add that a couple applying retrospectively must have been in a relationship for a minimum of 12 months if they are not married or in a civil partnership. Surrogacy can be a route that couples look to when they are unable to have children themselves, and I do not believe—I am sure that members of the Committee do not either—that couples would enter into it lightly. The process of a couple deciding that they are both happy with such an arrangement is complex, and they have to find a surrogate who would be suitable to carry their child. That can take a number of years, so in most cases, the couple will have gone through the process together. In addition, when the court is considering the application, it would have to be satisfied that the couple were in an enduring family relationship for the parental order to be granted. As part of that consideration, it is more than likely that the court will consider the length of the couple’s relationship as well as their commitment to each other. The Government are prepared to continue with the arrangement whereby the family division of the High Court would take the decisions on what made for an enduring relationship that was suitable and in the best interests of the child for a parental order to be made.

There is no reference to this enduring family relationship in subsection (11), to which the hon. Gentleman referred, because to make an application to the court under section 54, if the couple are not married or in a civil partnership, they must be in an enduring family relationship. Therefore, it is not necessary for it to be in the legislation in the way that the hon. Gentleman is suggesting.

I am sure that the hon. Gentleman would agree with the principle that the family division of the High Court, with its experience, is the best place to test whether a relationship is an enduring one. That decision is better made by the courts than by Parliament seeking to put in place arbitrary time periods or definitions, however well meaning we may want to be. The ultimate test when issuing the parental order is what is best for the child.

Mark Simmonds (Conservative, Boston and Skegness)

Of course I accept that couples would not enter into a surrogacy arrangement lightly, and the Minister was quite right to point out that, more often than not, that process can take a number of years. I also understand her comments about the High Court considering the length of the relationship. However, I want to put on record the fact that we are talking about different categories. There is a difference between people looking forward to what may happen in the future and enabling a retrospective decision to be made. I understand the Minister’s explanation. It may also be interesting for the Committee to know whether the Minister has a view about how many retrospective cases there might be under subsection (11) once the Bill has been enacted and about how many of those will be same-sex couples, or different-sex couples.

Dawn Primarolo (Labour, Bristol South)

The Government will have no idea about that as it is not possible to measure. However, as I said during the earlier debate on the British Nationality Act 1981, there were something like 50 applications a year for parental orders involving surrogacy. It is not a huge number, but parental orders are considered on a case-by-case basis by the High Court.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister. The purpose of the amendment was to ensure that there are no loopholes in the legislation. I am grateful for her response and I beg to ask leave to withdraw the amendment.

Schedule 6

Robert Key (Conservative, Salisbury)

Schedule 6 is an enormous part of the Bill; it is 27 pages long and, in the other place, it received substantial scrutiny. Other things have happened since, so I wish to ask the Minister to clarify one or two points.

On 12 December 2007, Baroness Deech noted in another place that birth certificates are used for all purposes and that they will be used all over the increasingly globalised world of proof of this and that. She argued that birth certificates should therefore focus on the child’s origins, not the situation of the parents. Baroness Barker disagreed, arguing:

“A birth certificate is not a certificate of somebody’s genetic identity...but...a record of who a child’s social parents are at any time”.

The title of schedule 6 is “Amendments relating to parenthood in cases involving assisted reproduction”. The Minister in the other place, Baroness Royall, argued:

“The Bill allows that same-sex couples, whether in a civil partnership or being treated together, can both be legal parents of a child born through assisted conception. For these provisions to be fully legally recognised, the Bill includes amendments to other Acts to allow birth certificates under UK, Scottish and Northern Irish law to record that”.—[Official Report, House of Lords, 12 December 2007; Vol. 697, c. 296-99.]

That seemed to be all very certain. However, on 4 February 2008, on Third Reading, Lord Jenkin tabled an amendment that would have meant that within four years of schedule 6 coming into force, the Secretary of State would carry out a review of the law and practice to decide whether to include donor conception on birth certificates. Baroness Royall resisted the amendment, but made a commitment that the Government would carry out a review. She said:

“I can make a firm commitment that the Government will carry out a review of practices in informing donor-conceived children of the fact of their donor conception and whether there is a need for a change in the law to best ensure that donor-conceived children are informed of their donor conception. We will do this within the timeframe suggested by the amendment tabled by the noble Lord, Lord Jenkin”.—[Official Report, House of Lords, 4 February 2008; Vol. 698, c. 904.]

That also seemed to make the matter clear, but on 2 June, the Secretary of State for Work and Pensions and the Secretary of State for Children, Schools and Families, issued their White Paper, “Joint birth registration: recording responsibility”, chapter 1, paragraph 5 of which states:

“This White Paper focuses on the way the birth registration system applies to unmarried parents and their children, particularly from the child’s perspective. It does not cover the birth registration process for married couples, which works well and where we do not propose to make any changes. Nor does it cover changes to birth certificates arising from adoption...or from the changes proposed in the Human Fertilisation and Embryology Bill to allow a same-sex couple to be recorded as parents at birth. Further consideration of the latter will be needed once that Bill has passed through Parliament”.

Will the Minister explain whether the 27 pages of the Bill that we appear to be about to nod through will be wiped off the statute book by future Government considerations when they legislate on the document “Joint birth registration: recording responsibility”? I am sure that the Minister has a very fine answer for us and I would be grateful to hear it before we proceed.

John Pugh (Liberal Democrat, Southport)

I have the same concerns about the schedule. If we are honest, few of us have mastered the complete detail of this horrendously large provision. It amends legislation—indeed, we have seen this in the past few minutes—that stretches from 1928 to about 1995.

Robert Key (Conservative, Salisbury)

From 1836.

John Pugh (Liberal Democrat, Southport)

I stand corrected.

We are confronted with an adjustment to the law that is of byzantine complexity, but we are implicitly being asked to believe that there is a kind of coherence to it, even though we have not established that there is—we must take that on faith. I am sure that we have enormous faith in the ability of parliamentary draftsmen to guarantee the integrity and coherence of the law, but I can hear the alarm bells ringing.

If anything, those alarm bells grew louder last night when I inspected a website devoted to fathers’ interests that explains how fathers can successfully deal with any threat to those interests. The website put enormous stress on the importance of the birth certificate—what it means and how fathers can use it to get the rights, the access to their children and the responsibilities that they feel they deserve.

There was a naïve belief that the birth certificate had clarity, but that can no longer be established. If there is a dispute in the House of Lords between people who should know whether the birth certificate is supposed to indicate genetic origin or social parenting, the ordinary public will suffer from a certain vagueness.

The Minister said that an entry on the birth certificate could be purely symbolic.

Dawn Primarolo (Labour, Bristol South)

With respect, the quote that the hon. Gentleman attributes to me, in which I used the word “symbolic” in relation to birth certificates, was not a general statement. I was speaking—following on from the 2003 Act—about specific circumstances in which the father or parent is deceased. I was not making a general point about the symbolism or otherwise of entries on the birth certificate. The hon. Gentleman should not take the specific for the general and assume that it reads across, because it does not.

John Pugh (Liberal Democrat, Southport)

In no sense was I attempting to do that. However, we have established in the case of a deceased parent who does not contribute sperm to the IVF process that the entry on the birth certificate would indicate neither a social role nor genetic origin. We are in a very confused situation, although I am not sure whether we can rectify it in this Committee.

The hon. Member for Salisbury talked about whether donor conception should be indicated on the birth certificate. I stand to be reasoned with for or against on the issue and I have no fixed views, but donor-conceived adults should know their genetic history. If there is no way for them automatically to find that out—if nobody tells them and they make no inquiries—they could be asked in the doctor’s surgery whether they have a certain disease, and they would, in all honesty and with complete integrity, make an inaccurate and false claim because there was no such disease in what they thought was their family. That is a concern.

Dawn Primarolo (Labour, Bristol South)

Does the hon. Gentleman not accept that the same could, regrettably, apply to people’s genetic make-up now? We put absolute trust in our parents to ensure that we know such things. With IVF, parents are put in exactly the same position of trust in ensuring that their children know these things. The legislation loops around.

John Pugh (Liberal Democrat, Southport)

Yes, we could be wrong about our genetic inheritance and our parents could mislead us, but they would do us a disservice, particularly as we are learning that disease profiles are related to one’s genetic disposition.

Robert Key (Conservative, Salisbury)

I believe that what the Minister said needs qualifying. Of course it is true that we trust our parents to tell us whether they are in fact our parents, but unfortunately we know that in one live birth in 10 the mother does not know who the father is. That evidence was given to the Joint Committee. More important today is that there is a difference between trusting our parents and trusting the state. To be involved in state deception, with the state preventing a child from knowing its genetic antecedents, is quite another matter.

John Pugh (Liberal Democrat, Southport)

The hon. Gentleman makes a good point. The state is knowingly putting people in a position less advantaged than they ordinarily have. I believe that legal opinion ought to be sought on the matter, because there is a human rights issue to be decided. The state knows something that the individual does not. The individual may consult the state medical service, which may ask a genuine question, but that person cannot answer adequately because he has no means of doing so.

Mark Simmonds (Conservative, Boston and Skegness)

The hon. Gentleman may not be aware that legal advice has been sought, but counsel’s advice is that it may be against the human rights of the child knowingly to remove potential genetic knowledge—perhaps preventing the child from benefiting from treatment to resolve a genetic inheritance problem because the information had been removed from the birth certificate.

John Pugh (Liberal Democrat, Southport)

I am grateful to the hon. Gentleman for that intervention. It supplements the point that I was making.

The more fundamental point is explicit. It is that people have almost a moral right to know of what they are made. That is over and above what human rights legislation provides. The state should not be seen to frustrate that. We have opened up a wide debate, possibly going beyond schedule 6, but those concerns will re-emerge on Report.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before the Committee goes down the human rights path, it is probably worth considering the report of the Joint Committee on Human Rights on the issue. As the hon. Member for Boston and Skegness said, at best it is a potential right—in other words, the right to know is engaged—but no case law in Europe or here has established any sort of actionable right, not even against the state.

John Pugh (Liberal Democrat, Southport)

I thank my hon. Friend for that intervention. I am reluctant to get into esoteric debates about human rights. My hon. Friend is a fundamentalist on human rights in a way that possibly I am not. The point is that I know discrimination when I stare at it; in this case, we appear to be staring at discrimination facilitated by the state.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Fundamentalist or otherwise, I am grateful for the opportunity to speak again. I am conscious of the fact that we might debate the subject further when we come to one of the new clauses, but it is important to clarify a number of things.

I support the Government’s position on this part of the Bill and their approach to birth certificates. I know that that view is not shared across my party; for us, it is a free vote issue, and Baroness Barker took a different view in the House of Lords. She was entitled to do that, and she did so effectively. I respect her sincere views on the matter, but birth certificates are a statement of legal parenthood, and it does not necessarily relate to genetic parenthood.

The hon. Member for Salisbury spoke of one in 10. Some research studies show that as many as 10 per cent. of children believe their social father to be their genetic father when he is not; whether the mother knows who is the father is a separate issue. The child does not know in non-paternity cases far more frequently than in assisted reproduction. There is clearly a difference if the state has the information, but in respect of allowing children to know who their genetic parents are, the Government have chosen not to tell the children directly, and not to force parents but merely to encourage them to do so.

That is best practice, and it is right that the Government’s funding approach promotes it. That is right and proper. Maybe I am being a fundamentalist about not being statist on the matter, but I do not think that it is the state’s role to wade into families, disrupt the family dynamic and tell them what to do. It would be going over the heads of parents, who are entitled to some privacy about non-paternity and, if they choose not to tell their children—regrettably, in my view—about assisted reproduction.

The point has been made that that puts such children at a disadvantage in terms of family history if they see a doctor, but non-paternity is far more frequent than assisted reproduction. As we know, even where one cannot access identifying information about a donor, it is always open to a child who knows to get that information as an adult. Parents have their children’s best interests at heart and will be aware if there is an issue of familial disease that will bear strongly on their children.

There is no perfect solution. There are significant drawbacks in seeking to specify over the heads of parents that children should be notified or birth certificates marked. Birth certificates are public documents—well, they are not public documents, but they must be produced on certain occasions—and people have a right to privacy.

To finish with the human rights issue, it is often stated—it was stated, incorrectly, in the House of Lords—that there is some human right to know one’s genetic parents. If that is the case, one would have a right to perform paternity tests on one’s father or lie detector tests on one’s mother, overriding their right to privacy. That is not the case. Fathers and mothers have a right to privacy. If we go down that path and follow that idea to its full conclusion—I do not suggest that hon. Members are saying that we should—there will be implications. I shall not read it out, but I draw the Committee’s attention to pages 56 and 57 of the Joint Committee’s report, which clarifies that the Rose case showed that article 8 was engaged on private life, but that that case was never decided in respect of what balance must be found between the person’s and the parents’ rights.

John Pugh (Liberal Democrat, Southport)

My hon. Friend spoke about maternity. The sort of case that most acutely affects me is one in which, for example, the child of a donor egg was female and a strong history of breast cancer, which has a virulent genetic component, was attached to the donor family. Would that not be putting somebody at a serious and possibly even fatal disadvantage?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Yes. Clearly, people who have inherited a genetic disease are at a disadvantage. That is also the case where a male transmits a disease unbeknown to the person who inherits it. Believe me, I know about the tragedy of serious inherited genetic disease, but the fact that such things happen does not mean that we need to override parents’ rights.

The issues are difficult, but I think that the Government have taken the right approach. They have said that they will review the matter, and we must remember that when the Government removed donor anonymity—I thought that that was wrong and that there should be a choice—they chose not to force parents to tell their children of the fact of donor conception. When donors are identifiable, there is an increased risk that parents will not tell their children, so the result is more secrecy, not less, because parents believe—wrongly, but quite naturally—that children will try to find their genetic parent. The issues are complex, but in this Bill, the Government have got it right. Although the schedule is complex, I support its overall approach.

Brian Iddon (Labour, Bolton South East)

Before the Minister responds—I expected this discussion to take place under new clause 1, but it has been generated now—has she given any thought to the suggestion floated by one organisation that we should have a short and a long birth certificate? The short one would be essentially the one that we use now to obtain various services and produce to show what parents brought us up in a social way. At the same time, if it is a donor-conceived birth, a long birth certificate would be presented to the parents, which could be kept confidential, wherever those parents wish to keep it. When they think that the time is right to tell the child who is conceived in this way about its genetic background, they could present the long birth certificate to the child. I have not given the idea much thought, but it is worthy of consideration by the Committee—and by the review, when it takes place.

Mark Simmonds (Conservative, Boston and Skegness)

I would like to join other hon. Members who have spoken in the debate and again express my concern about schedule 6. As my hon. Friend the Member for Salisbury rightly pointed out, the schedule is extremely lengthy, detailed and complex. I do not wish to repeat what others have said, but I want to support the points made by my hon. Friend and the hon. Member for Southport on the seeming conflict that exists in Government policy direction. The Bill says, on page 73, in paragraph 4(3)(1B):

“the registrar shall not enter in the register the name of any woman as a parent of the child by virtue of that section”.

It goes on to make some exceptions. That throws up the question of the necessity and importance of a mother, as well as the importance and necessity of a father, which we debated on the Floor of the House a little while ago. That seems to be the policy direction in the Bill, but let us look at the White Paper just released by the Department for Work and Pensions. A press release from the Secretary of State for Children, Schools and Families quotes from the foreword by the two Ministers, which says that the White Paper

“sets out...measures to promote and support joint birth registration and changes to give mothers a right to insist that the father acknowledges his responsibilities to his child by registering on the birth certificate. Equally, it gives a father a new right to insist that he is registered.”

I accept that that is not yet legislative change. Those are non-legislative measures. However, the press release goes on to say that the two Departments will jointly develop further legislation within the Government, which throws out the question of how the interactions will occur and whether they will fit comfortably alongside each other. That seems to be, at the very least, a conflict of direction.

I do not wish to get into the detail of the debate on new clause 1, which will occur later in Committee. We need to raise specific issues in some detail when we come to discuss that new clause. However, there appears to be an inconsistency. We have to acknowledge that there have been inconsistencies for some time on the contents of birth certificates. They have not always been an exact genetic record of the child, but that does not mean that the state should be complicit in making them less of an accurate record. I am sure that later we will have the genetic versus social debate, but the birth certificate is an important document. I am nervous about the state colluding in what is, ultimately, a deception on behalf of the as yet unborn child.

We can get into the legal wrangling later on, but I am nervous—the hon. Member for Oxford, West and Abingdon made the point, although he seemed to dismiss it rather quickly—that we could disadvantage a child who may well have a familial disease by not having an accurate record on the birth certificate. We should discuss the suggestion made by the hon. Member for Bolton, South-East, because it is a potential solution to the problem. I have wrestled with the issue for a considerable time and I think that I have come to a conclusion—although there are circumstances in which it would not be possible—that wherever and as much as possible the birth certificate should be a biological record of the child.

Dawn Primarolo (Labour, Bristol South)

The hon. Member for Salisbury put the matter clearly. We have gone into other discussions that buttress that, but I want to answer his three points specifically, without drifting into new clause 1, which we will debate later. The Bill, set within the specific parameters of IVF, continually cross-references and refers to the need for the parents to be responsible for the child, except where the parent, including the father, is deceased. In that context, all hon. Members agree that, as I have said in our proceedings, the decision to have a child should not be taken lightly and carries with it responsibilities. That is continually reinforced in the Bill. It is about caring, nurturing, supporting and providing for that child.

Schedule 6 cross-references, for same-sex couples, the responsibilities that we are updating in the Bill in respect of the 1990 Act with every other piece of legislation on registration and responsibilities for a child.

The second point made by the hon. Member for Salisbury, which was also considered in the debate in another place, was about whether the fact that a child was donor-conceived should appear on their birth certificate. The point about transmission of genetic predispositions to certain diseases for donor-conceived children is already dealt with, as all donors are screened. We know a huge amount about such things now, so unless a condition is not known about, it is less likely that a donor-conceived child will be at a disadvantage, as the hon. Member for Southport mentioned, than that anyone else will, because their genetic parent will have been actively screened before conception. It is a long, difficult process and the donor enters into that consideration.

On the point about whether a child’s being donor-conceived should appear on their birth certificate—

John Pugh (Liberal Democrat, Southport)

Will the Minister give way?

Dawn Primarolo (Labour, Bristol South)

I should just like to make the general points to get them on the record, but after that I am happy for the hon. Gentleman to respond. I should like to state my case first.

Before we go down the highways and byways of human rights and everything else, it is good to mention that the Joint Committee on Human Rights said that it was concerned about the suggestion that the donor information should appear on the birth certificate, because it felt that it raised serious concerns about the privacy of the donor as well as of the donor-conceived individual. On that basis, the Government recognised that this was a highly complicated issue and that other considerations were in place, including “telling and talking” projects and counselling. We accepted in another place that it would be sensible, after the Bill receives Royal Assent—we cannot start before then—for us to consider the matter and return to the House within four years.

The final point was about what the Department for Work and Pensions record says. The DWP White Paper, which was written before the Bill—although the Bill is going the way the White Paper wants to go—is about the responsibility of parents. That has been recognised, specifically, in the context of a commitment to the upbringing of the child, financially and otherwise. The White Paper addresses that point, which is already dealt with in the Bill. The Bill also includes a cross-reference to the child support legislation to ensure that there is a commitment in that regard. Although the White Paper was written without reference to the details in the Bill, which has yet to receive Royal Assent, the Bill does not contradict it. In fact, the White Paper talks about bringing everything up to the point where all parents are responsible, including mothers and fathers and those in civil partnerships and relationships. That is a different discussion.

(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) - Schedule 6

Dawn Primarolo (Labour, Bristol South)

I have one last point to make in response to the issues raised by hon. Members.

My hon. Friend the Member for Bolton, South-East asked about whether the fact that a child was donor-conceived should be on the birth certificate. In recognising the difficulty that others, such as the Joint Committee on Human Rights and the Royal College of Midwives, have with that being on a public document, he raised the prospect of whether one way round the problem would be to have two birth certificates—one public and one private. The private one would be longer and would indicate that the individual was donor-conceived.

I will not express an opinion either way, because we are discussing one of the options that we would need to consider when carrying out a review, which we have committed ourselves to doing within four years of the Bill coming into force. The question is whether there is a way in which the law can be changed to balance the issues that hon. Members have raised—the right to know of the donor-conceived child against the rights of the donor and anonymity—and to make progress. That is certainly the sort of issue that could be explored, and that was why the Government decided that it was better to consider it in the context of a review and to report back to the House.

The schedule is long because it deals with England and Wales; where the law varies in Scotland, it deals with Scotland, and it also deals with Northern Ireland. Much of it is duplication, but for different jurisdictions.

John Pugh (Liberal Democrat, Southport)

In the previous sitting, the Minister mentioned the pre-screening of embryos and that type of thing. She made a perfectly valid point, but I think that she would recognise that many diseases for which there is a genetic predisposition cannot be properly screened for, certainly at the embryo stage. Also, over the 18 years before the child can make inquiries about his genetic background, there might be other discoveries that link genetic factors with illness. It is therefore not a complete answer to say that the embryo that is the subject of in vitro fertilisation is privileged in that respect. It will be privileged in some respects, but there will still be a problem.

Dawn Primarolo (Labour, Bristol South)

I am sorry to disagree, but I do not think that the hon. Gentleman’s point makes the case either. First, to say “Well, something could happen in the future, but we don’t know,” applies to us all. Secondly, the parents will have a duty and all parents will want to do the best for their child. If something happened before the individual was 18, the parents would clearly need to think very carefully about what steps they might be able to take in those circumstances. We are talking about screening for things that we do not know that we need to be screened for. With respect, it is a preposterous proposition to say that therefore this should apply to somebody else. Of course, when the child gets to 18, they have an absolute right to know the identity of the person. This is an interesting debating point, but it does not shed any light on the reasons why we would want to put the proposed information on the birth certificate.

I am not saying that the Government have set their face against the proposal. I am saying that this is a highly complex issue, which balances a whole series of rights, including those of the donor. We need to consider the possibilities in the light of the new legislation, and that was why the four-year review was proposed.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I agree with both the Minister and my hon. Friend the Member for Southport—[Interruption.] I know that that is hard to do, but I am trying to bring members of the Committee together.

There will be advances—perhaps even genetic chips—in the future, and we might be able to screen for diseases that we cannot screen for at the moment. Nevertheless, the Minister is right that we cannot future-proof things, and my hon. Friend’s point is not a good enough argument for changing the current position. Indeed, I do not think that it will ever be a good enough argument for invading the privacy of families. There is always a risk that we will inherit something—life is full of risks.

Dawn Primarolo (Labour, Bristol South)

There is no end to the hon. Gentleman’s talents. He is—I say this genuinely, but also as a bit of a joke, so I hope that he takes it in the right spirit—a conciliator as well. He makes the important point that the distance between what I and the hon. Member for Southport are saying is not that great. We are both saying that we need to consider the issue properly and balance the rights of all those involved, and we should not do that in haste.

Mark Simmonds (Boston and Skegness) (Con) rose—

Dawn Primarolo (Labour, Bristol South)

That was a good, conciliatory point to end on, but the hon. Member for Boston and Skegness wants to intervene first.

Mark Simmonds (Conservative, Boston and Skegness)

I understand what the Minister says, and she is right that these matters are extremely complicated. Will she say a little more, however, about how the Government came to the view that four years was the appropriate length of time for the consultation? Although these are complex issues, four years is still an extraordinarily long time to take reaching a conclusion.

Dawn Primarolo (Labour, Bristol South)

We made a commitment to carry the review forward within four years. As I said, the Government were seeking common ground by making it clear that we had not set our face against the proposal or decided on the issue in principle. We also clearly needed time to assess things such as “telling and talking”, the Donor Conception Network project and the extra work on counselling. Equally, we were trying to meet the legitimate concerns of Lord Jenkin, who proposed the four-year period in his amendment in another place. We picked that up, but included the caveat that the review would happen within four years. I assume that Lord Jenkin was looking for a sunset provision to ensure that the review would definitely be done by a certain time, although it could be done earlier if necessary. That was why we settled on four years. To follow on from the comments made by the hon. Member for Oxford, West and Abingdon, let me say that the Government were trying to be conciliatory—we were trying to find common ground.

Clause 59

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 178, in clause 59, page 49, line 23, at end insert—

‘(2C) Not for profit bodies can only recoup the costs incurred—

(a) initiating or taking part in negotiations with a view to the making of a surrogacy arrangement, or

(b) compiling any information with a view to its use in making, or negotiating the making of, a surrogacy arrangement.’.

Clause 59 brings us back to surrogacy arrangements, which are not enforceable in law, as the Minister correctly said. The Surrogacy Arrangements Act 1985 prohibits organisations or people, other than intended parents or surrogate mothers, from undertaking certain activities relating to surrogacy on a commercial basis, and that is absolutely correct.

Not-for-profit bodies can charge a fee to initiate negotiations with a view to making surrogacy arrangements and compiling information about surrogacy. However, they are not allowed to receive payments for offering to negotiate a surrogacy arrangement or for taking part in negotiations about them. However, they are allowed to do such things if there is no charge. There is thus potential for cross-subsidisation, with not-for-profit organisations charging more for the activities for which they are able to charge so that they can undertake those activities for which they are not able to charge.

The amendment would ensure that cross-subsidy was prevented, and that charges that were allowed for initiating negotiations or providing information could be commensurate only with the costs incurred in fulfilling those specific roles, and not in generating revenue so that not-for-profit organisations could get involved in other things.

Dawn Primarolo (Labour, Bristol South)

We have discussed various elements of surrogacy as it relates to the Bill. Clause 59 amends the 1985 Act to clarify the position in law of non-profit making surrogacy organisations. It makes clear that they may charge for their services on a non-profit making basis, and enables them to advertise the services for which they may charge. Such bodies get involved in initiating negotiations with a view to making surrogacy arrangements, and compiling information about surrogacy with a view to its use in making or negotiating a surrogacy arrangement. We recognise that it is difficult for surrogacy organisations to provide a service for a small number of people who seek advice and help with surrogacy in the UK if they are unable to recoup the costs of providing those services.

The amendment would ensure that non-profit surrogacy organisations could recoup the costs incurred only for initiating or taking parting in negotiations with a view to making surrogacy arrangements, or compiling any information with a view to its use in making surrogacy arrangements. I reassure the hon. Gentleman that that is what the Bill does, albeit in a slightly different way.

Clause 59 says that an organisation may charge for certain activities, but only if it is

“not carried on for profit.”

It may charge for: initiating negotiations with a view to making a surrogacy arrangement; enabling interested parties to meet each other to discuss possible surrogacy arrangements; compiling information about surrogacy with a view to its use in making or negotiating a surrogacy arrangement; and establishing and keeping lists of people willing to be surrogates or intended parents.

I can absolutely assure the hon. Gentleman that subsections (2), (4) and (5) insert provisions into the 1985 Act that achieve exactly the intentions behind his amendment. I make it clear that the measure will allow organisations to recoup the costs of providing these services only on a not-for-profit basis. The provisions would enable not-for-profit organisations to charge for putting couples in touch with each other, but not for any more direct intervention in the discussion. I appreciate that that is a fine line—it is exactly the line that the hon. Gentleman wants to ensure is in place—but I assure him and the Committee that the amendments to the 1985 Act are not intended to turn surrogacy into a commercial industry. The arrangements will be kept exactly as they are. The 1985 Act contained firm steps to ban any commercialisation of surrogacy and that principle has not been changed.

I hope that those strong reassurances will satisfy the hon. Gentleman that we have stayed on the correct side of the fine line. I am grateful for the opportunity to spell that out clearly.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful for the Minister’s constructive response to my probing amendment and for her reassurance that there is to be no movement away from the principle that surrogacy is prohibited from becoming a commercial activity in this country. I am assured from what she said that the point behind the amendment is covered elsewhere in the clause.

Before I withdraw the amendment, I want to point out that I am still somewhat concerned about something. I do not suggest that non-profit organisations in the surrogacy field would do so, but I am aware that there are other non-profit organisations that are good at increasing their cost base to make sure that they do not make any profit and that they therefore come within the guidelines, but they do so while increasing their revenue streams. We certainly would not want to deter people from participation in surrogacy for financial reasons and financial purposes.

Dawn Primarolo (Labour, Bristol South)

I agree about the importance of that. I should also have made something clear to the hon. Gentleman about attempts at a cross-subsidy—something that he touched on—by showing that costs were very high for the introduction, on a so-called not-for-profit basis. If there was seen to have been a cross-subsidy in the arrangements, in any way, that would be an offence under the Surrogacy Arrangements Act 1985, and would be dealt with accordingly. I hope that I have reassured the hon. Gentleman about that.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful for that point, which clarifies the only outstanding point I had to raise about the amendment. I beg to ask leave to withdraw the amendment.

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move amendment No. 179, in clause 59, page 49, line 38, leave out subsection (7).

The amendment relates to advertising. At present, there is an outright ban on advertising for surrogacy services. The purpose of the amendment is to extract from the Minister what positive changes she believes will come about as a result of the changes to the 1985 Act. I understand that the clause would not allow profits to be used for advertising services, except with regard to initiating or negotiating an agreement, or compiling information. My understanding is that those concerned would be able to advertise that they had a list of people who were willing to be involved in surrogacy, for example.

My amendment would return the rules on advertising to the existing ones under the 1985 Act and prevent not-for-profits from advertising any particular services. I cannot see—and I have not heard anywhere, prior to our discussion now—any defence of, or justification for, the change. Presumably people who were thinking of using a surrogate would be able to find the information anyway, without advertisements, because they would have been interested in it and thinking about it for several years. It would also be wrong to influence people by advertisements.

Would the offences in relation to contravening the ban on advertising under the clause be the same as for contravening other provisions of the 1985 Act, or would that be something additional to be included in a subsequent Bill?

Dawn Primarolo (Labour, Bristol South)

The hon. Gentleman’s probing amendment deals with the extent of what can be advertised and whether there is variation from the provisions of the 1985 Act. I shall deal with those specific questions.

As I said, clause 59 amends the Surrogacy Arrangements Act 1985 to clarify the position of non-profit making surrogacy organisations. It allows them to charge for their services on a non-profit basis, and it also enables them to advertise the services for which they may charge. The activities that those bodies carry out involve the following: initiating negotiations with a view to making surrogacy arrangements, thus enabling interested parties to meet each other; and compiling information about surrogates, with a view to using it in making or negotiating surrogate arrangements—to establish and keep lists of willing surrogates and intended parents. Those two activities have to be considered together. The question is how to put the intended surrogate, the woman who is prepared to be a surrogate, and interested parents in touch.

The amendment would remove the provision on advertising. At present, it is unlawful for anyone to advertise that they are or may be willing to enter into a surrogacy arrangement. It is also against the law for people to advertise that they are looking for a surrogate or for intended parents. Those provisions are contained in 1985 Act, and the Bill does not change them. Clause 59(7) amends the 1985 Act to allow non-profit-making bodies to advertise the services for which they may charge—for initiating or taking part in negotiations, or compiling information with a view to making surrogacy arrangements.

I assure the hon. Gentleman that the Bill clarifies what a not-for-profit organisation can do without undertaking commercial surrogacy activities. It can advertise its own services, but it would need to be very clear about the fact that it has to stop at that point. What is still prohibited is individuals advertising the fact that they are looking for a surrogate and the publishing of names. Such specific services are still covered—the Bill has not changed that.

I hope that the Committee recognises that the provisions are not intended to make surrogacy into a commercial business. We recognise that, for some, surrogacy is an option of last resort and that the organisations that provide them with advice and information need to be able at least to publicise the fact that their services may be of assistance. It seems unnecessary to make things more difficult than they already are, but it is necessary to clarify matters and to ensure that the 1985 Act prohibitions stand. I hope that the hon. Gentleman accepts my explanation.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for her response. It might be that the confusion—if that is the right word—rests on what “advertisement” means. Is it the same as making information available, or does it mean promulgating a service and attracting an audience to a service provision? There is no problem if it means information, but the word “advertisement” has a commercial connotation. The Minister gave a clear explanation of the meaning of proposed new subsection (1A) to section 3 of the 1985 Act means and the difference that applies, but she did not explain why the measure has been drafted or what positive difference it will make. I have not had any experience of, or been contacted by, anybody, either from my constituency or elsewhere, who has not been able to find out about matching and commissioning people who are prepared to be surrogates, so there is no failure in the structure of the 1985 system. I am therefore not sure that the word “advertisement” adds anything.

The Minister was right to reconfirm that the measure does not amount to a commercialisation of surrogacy, and I agree with her. However, what difference would the measure make to those who were trying to access surrogacy services by allowing those who provide the service to advertise over and above the current provision of services? The measure does not seem to make any difference, so I do not see the point of it.

Dawn Primarolo (Labour, Bristol South)

My answer will take longer than a normal intervention. The Government are aware that a number of agreements—the number is small rather than vast—are reached each year, as I mentioned in my contributions to debates on other surrogacy measures, which is linked to the point that the hon. Gentleman made on what can be advertised.

However, the point is that bodies can make a charge, on a non-profit making basis, for initiating negotiations with a view to making a surrogacy agreement and, as I said, enabling interested parties to meet each other. Some organisations would find it difficult to present such services—they are not commercial, which is to say that they are not for profit—under the 1985 Act. The Government are clarifying the difference between what we consider to be commercial and not for profit. We are not going to see adverts on television because we are talking about a specialised area and small group of people. The advertising can draw the public’s attention, but charging people who want to initiate negotiations is not for profit.

I accept what the hon. Gentleman said. He said that those parents who have taken the big step, for whom surrogacy is the last resort, are more than likely to be aware of everything. It could be considered churlish to make things more difficult just because we can when we are limiting what is provided by the 1985 Act. This is about the difference between what organisations are allowed to provide on a non-profit making basis and thus charge for, which is basically the introduction, and the commercial aspect. Individuals are not allowed to advertise and we do not allow the publication of a list of individuals, or for people to say, “I’m an individual looking for a surrogate”. That type of advertising is not permitted. That is the fine line that we seek to draw. That is a slightly elongated attempt to pick up the points, but I hope that I have clarified the situation.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to the Minister for that further clarification. She is absolutely right to highlight the difference between non-profit-making and charging elements. However, I ask that she and the relevant civil servants monitor the situation carefully, because there is concern that it might be possible to stretch the envelope in ways that were never intended for the advertising and marketing of services. I beg to ask leave to withdraw the amendment.

Clause 60

John Pugh (Liberal Democrat, Southport)

I beg to move amendment No. 152, in clause 60, page 50, line 1, leave out from ‘(2)’ to end of line 2 and insert

‘after “or human embryos”, insert “but includes human admixed embryos”.’.

I move the amendment on behalf of the right hon. Member for Coatbridge, Chryston and Bellshill (Mr. Clarke). It would incorporate human admixed embryos into the definition of genetically modified organisms in the Environmental Protection Act 1990 as organisms that need to be regulated in case of any foreseeable danger to the environment or dissemination of dangerous developments. Clause 60 specifically excludes human admixed embryos from the Act. Part 6 of the Act, which deals with genetically modified organisms, states that it exists

“for the purpose of preventing or minimising any damage to the environment which may arise from the escape or release from human control of genetically modified organisms.”

Section 106(2) says:

“In this Part the term ‘organism’ means any acellular, unicellular or multicellular entity...other than humans or human embryos”.

As I understand it, clause 60 adds to that “or human admixed embryos”. The amendment would change the wording to read:

“In this Part the term ‘organism’ means any acellular, unicellular or multicellular entity...other than humans or human embryos but includes human admixed embryos”.

The rationale came as much as anything else from that august body the Select Committee on Science and Technology. When it recognised the possibility that new diseases could arise from mixing human and animal material and recommended cytoplasmic hybrid embryos, it said:

“In the event that research using cytoplasmic hybrid embryos is authorised, we urge the Government to ensure that appropriate risk management procedures are established and implemented”.

The Government responded:

“The Government agrees with the Committee that researchers will have to apply appropriate risk management procedures for research that involves the mixing of human and animal materials. We will keep the current procedures under review.”

What we are looking for in this probing amendment is recognition from the Government that they have considered all possible safety concerns and whether the Environmental Protection Act 1990 is the appropriate vehicle for addressing them.

The Science and Technology Committee received submissions from the Scottish Council on Human Bioethics, which told us that by undertaking such work, scientists risk creating new diseases and that it is

“well known that many animals may harbour in their organs, cells and genome, microbiological and other entities which may cross the species barrier and develop in the host”.

Given their concerns and those expressed by the Select Committee, the amendment is a probing one designed to find out whether the Government have taken those concerns on board, particularly as we all recognise, having read the legislation, that human admixed embryos is a fairly wide category.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As a member of the Science and Technology Committee that compiled the report, I can say that the quotes are correct. However, I would interpret the report slightly differently from my hon. Friend. We cite, as Select Committees do, evidence that we receive. The only evidence that we received on this point—I remember reading it—was from the Scottish Council on Human Bioethics, which is a mixed body. The council is not exclusively religious, but it is not recognised as a body that has the status of a peer review scientific or academic organisation. We noted what it said, but we did not share its conclusion. Its conclusion was that much stronger restrictions were needed. We merely pointed out a statement of the obvious, and the position was shared by the Academy of Medical Sciences. The academy’s report says that there needs to be risk-management procedures appropriate to the status of the scientific knowledge about the risks. There are already those procedures in labs and we welcomed the Government’s response on that. Again, we stated the obvious, that there needs to be risk management. I share my hon. Friend’s view that this should be a probing amendment because whatever the risk management procedures are, treating this as a genetically modified crop does not seem to be the appropriate practical measure and runs the risk of allowing other people to argue that the issue is being trivialised, which is not the intention.

As far as I am aware, environmental release of human admixed embryos is not envisaged in any laboratory. While I am delighted that the Science and Technology Committee report has been cited—and cited accurately—the conclusions that my hon. Friend draws are not necessarily the ones that we would need to draw.

Mark Simmonds (Conservative, Boston and Skegness)

Despite the disparity of interpretation of the Select Committee quotes by the two hon. Gentlemen, can the Minister clarify whether this amendment, if it were to be included in the Bill, would undermine the special status of the embryo, which is the cornerstone of this particular piece of legislation?

Dawn Primarolo (Labour, Bristol South)

Let me answer that question. Yes, it would undermine the legislation, and I shall explain why. It conflates two different issues. Genetically modified human embryos are presently excluded from regulation on genetic modification of organisms in the Environmental Protection Act 1990. The 1990 Act regulates the use of genetically modified organisms for the purpose of preventing or minimising any damage to the environment, which may arise from the escape or release from human control of genetically modified organisms.

The hon. Gentleman asked whether an embryo or human admixed embryo could cause damage to the environment if it was released. The answer is an unequivocal no. A pre-14-day embryo would be incapable of entering into the ecosystem as it would be insufficiently developed to survive. However, safeguards are provided. Clause 60 ensures that genetically modified human admixed embryos are excluded but that they are properly regulated in protocols and research laboratories with regard to their disposal. The clause prevents dual regulation that is not necessary and ensures that the HFEA requires centres to have a documented procedure for disposal of embryos, which is appropriate and takes into account the special status of human embryos. Therefore, it is a different set of requirements. I hope that I have clarified why we do not need the cross reference. I trust that the hon. Member for Southport is satisfied by my explanation and will withdraw the probing amendment.

John Pugh (Liberal Democrat, Southport)

I beg to ask leave to withdraw the amendment.

Schedule 7

Mark Simmonds (Conservative, Boston and Skegness)

It would be helpful if, when responding to my brief contribution, the Minister will explain the amendment. My understanding is that it will merely necessitate a report being produced by the Human Fertilisation and Embryology Authority to the Secretary of State. I want to be sure that the annual report will be a public document and that it will be available for scrutiny, hopefully at the appropriate time for debate in Parliament. I clarify that the necessity to produce a report is not insisted on under the 1990 Act. It is a new provision that has been inserted into the Bill.

Dawn Primarolo (Labour, Bristol South)

Section 7 of the 1990 Act requires the Human Fertilisation and Embryology Authority to produce an annual report. Currently, section 7(1) requires a report covering the year from August to July, reflecting the fact that the HFEA came into operation on 1 August 1991. The amendment is a technical, administrative provision. The Treasury’s financial reporting manual requires non-departmental public bodies, such as the HFEA, to produce an annual report to accompanying the body’s annual accounts.

It is therefore practical that we amend the reporting period to cover the financial year April to March, in line with the requirements of financial reporting manuals. It is a purely administrative requirement. There will be no change to the requirement that the Secretary of State lays the annual report or any other report under the schedule before Parliament. There has never been a requirement that the report will automatically be put down for debate, but it must be laid before Parliament after which time it will be open through the normal procedure in Parliament for hon. Members to debate it. Because such a change was not worth making in legislation in its own right, we are making such an amendment now to bring matters into line.

Schedule 8

Clause 67

Clause 68

John Pugh (Liberal Democrat, Southport)

I have a question about new clause 7, which has been tabled, but tabled too late. I am advised that it would be appropriate to raise that issue at this stage. If I am wrong, I stand to be corrected.

I simply wanted clarification about the whole thrust of the legislation—what is banned and what is not? It is fairly clear that the Bill bans placing animal gametes in a woman, placing human admix embryos and animal embryos in a woman, placing human embryos in an animal and placing human admix embryos in an animal. However, neither the 1990 Act nor the Bill expressly ban the placing of human gametes in an animal. There may be a good reason for that—perhaps to allow the possibility of human ovarian tissue being matured or whatever—but the legislative loophole, if it is one, would also allow the potential development of a human or part-human embryo in a non-human primate, by a gamete intra-fallopian transfer. That loophole has been spotted. If it is not a loophole, I would be grateful for any clarification that the Minister can give on the issue.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The hon. Gentleman has raised a question about a new clause that was not selected, so the Minister need not respond, unless she wishes to.

Dawn Primarolo (Labour, Bristol South)

I shall write to the hon. Gentleman.

Clause 69

Dawn Primarolo (Labour, Bristol South)

I beg to move amendment No. 63, in clause 69, page 52, line 31, leave out subsection (2).

The amendment removes the privilege amendment that was made in another place. As hon. Members are aware, the financial powers of the other place are restricted by the rights and privileges of the House and by the Parliament Acts. As the Bill originated in another place and contains financial provisions, a privilege amendment was added to the Bill before its introduction in the House, to ensure that the House financial privileges were not infringed. It is therefore necessary to have a purely technical amendment to remove the privilege amendment, which provided that nothing in the Bill should impose or vary any charge on the people or public funds. It is a straightforward requirement under parliamentary rules.

New Clause 1

Mark Simmonds (Conservative, Boston and Skegness)

I beg to move, That the clause be read a Second time.

The new clause relates to the complex issue of birth certificates, which we touched on earlier. In the context of the debate surrounding part 2, new clause 1 relates to some of the issues raised when we discussed schedule 6. The new clause would ensure that the Secretary of State made regulations either to annotate a birth certificate or to provide two versions—as the hon. Member for Bolton, South-East suggested earlier in today’s proceedings. The Minister explained the Government’s view that there should be a four-year period of reflection, although if possible they should report earlier. I think that that is too long, and that we should get clarity as fast as possible.

There are significant issues surrounding birth certificates, and I would like to make a point about the new clause on the record. The welfare of the child should be paramount in the consideration of these issues, and it is important that the Secretary of State holds detailed consultations about this, particularly as regards the changes in the Bill. There are some anomalies. For example, if an unmarried couple, who may have known each other for only a short period, are treated with donated sperm, they are both recorded on the birth certificate as parents. However, a same-sex couple in a civil partnership are not both listed as parents and the woman who did not give birth to the child would have to adopt it in order to have any legal claim. Under the proposals, at least theoretically, although I suspect that in a small number of circumstances it could be the reality, neither of the people named on the birth certificate—mother and father or mother and other parent—will have a genetic link to the child.

The fulcrum of the debate is whether the birth certificate should be primarily a biological or a social record. That throws up all sorts of issues and the interesting thing is that the bodies that represent the donor-conceived community—if I can call it that—have differing opinions that are almost inversely opposed, and that makes these arguments even more complicated. I would like to suggest why the fulcrum should be moved towards the biological end of the spectrum, rather than the social end. Earlier, we discussed genetic diseases. That subject will become more and more prevalent and important as medical and scientific advancements take place and there is a greater understanding of inherited diseases, such as cancer and others that we have mentioned, which we hope will be circumvented by mitochondrial and other technologies.

Another issue is the deception of the state, and someone knowingly conniving—I use that word in its softest sense—in trying to remove the child’s genetic parentage from the birth certificate. There is the issue of sperm donors and donor anonymity, and the point raised earlier by the hon. Member for Oxford, West and Abingdon about donors having the choice to remain anonymous was pertinent. Inappropriate marriages may occur if people do not know, or at least have an indication, about their genetic history, and that goes back to some of the debates that we had about the age for obtaining the information from the HFEA.

Discrimination is another issue. Refusing to mark the birth certificates of those who are donor conceived, yet allowing two women to be shown as the parents of a child, inevitably makes a clear distinction between the two types of donor-conceived people. There are those who are donor conceived and for whom the information is made public—two women clearly cannot be the biological parents—and those for whom the information is not shown on their birth certificate. That seems to be an anomaly. The new clause, which I accept is not perfect, attempts to put on the record the great concern and strength of feeling about this issue.

Personally, I favour the suggestion made by the hon. Member for Bolton, South-East of a dual birth certificate, although I accept that that could be bureaucratic. I see the sensitivities of people who might not want to have it marked on their birth certificate that they were donor conceived. They may think that an infringement of privacy—why should someone have to produce that information when applying for a passport, or whatever birth certificates are used for? However, it is important that a child has an understanding, wherever possible, of their genetic make-up. A child should not necessarily have to wait until the age of 18 to understand that they are donor-conceived, although most parents do make an attempt to inform the child about such matters.

There is conflicting legal opinion on this matter. There are questions about how the human rights of the child and the right to health safeguards in the United Nations convention on the rights of the child will be met if a child is brought up without the requisite knowledge to avoid particular health consequences. It is important for healthy family life that genetic defects and intermarriage of relatives are avoided if at all possible. There is a real danger that, unless some solution is found to this complex problem, we will exacerbate an already difficult issue.

Robert Key (Conservative, Salisbury)

I endorse entirely what my hon. Friend the Member for Boston and Skegness has said. I would like to press him a little and to concentrate on the second paragraph (b) in the new clause, on the provision of a detailed birth certificate.

I am grateful to a number of organisations and individuals who have been in touch with me—the partnership focus group, the British Association of Social Workers Project Group on Assisted Reproduction, and the Donor Conception Network, to name but three. I am particularly grateful to Professor Eric Blyth, professor of social work at the university of Huddersfield, with whom I have had some correspondence on this matter. It seems to me that, in view of the discussion in the other place and what my hon. Friend has said, there is a problem that we must crack with the short birth certificate and the so-called long birth certificate. In the other place no proposal has been made that does not involve extra bureaucracy, which would risk compromising the privacy of parents or donor-conceived people, or other members of their family. The principle risk to privacy is the fact that birth certificates are public documents. Not only is the long birth certificate, which provides details of the individual’s parents, increasingly required for a range of legal and other purposes, but anyone who is armed with minimal information and prepared to pay a modest fee can obtain a copy of the long birth certificate of any other person in the country. I shall not repeat what I said earlier about the discussion in the other place, but I wonder if my hon. Friend would agree that all certificates of birth—in other words, the short birth certificate—could include this text:

“Further information relating to the individual whose birth is recorded on the certificate may be held on the Human Fertilisation and Embryology Authority register of information, the parental order register or the adopted children register.”

All certified copies of an entry pursuant to the Births and Deaths Registration Act 1953—in other words, the long birth certificate—could have this text:

“Further information relating to the individual whose birth is recorded on this certificate may be held on the Human Fertilisation and Embryology Authority register of information.”

Adopted people and people subject to a parental order as a result of a surrogacy arrangement already have an adoption certificate or a parental order certificate, respectively, in lieu of a long birth certificate, clearly indicating their status. The proposal I am making would mean that all individuals had access to a birth certificate that alerted them to the existence of other registers. It would not single out any one individual or, by implication, their parents or family members; everybody would have this. Thus, the information could act as a trigger for the individual to make their own inquiries of the registers, subject to the legally mandated age limits for accessing such information. Both in advance of undergoing a donor procedure and as part of the new provisions for parent education, adults who are contemplating building their family through donor conception would in the future receive a clear message about the merits of early disclosure and would be advised about the new text on birth certificates. That would provide parents with an added incentive for early disclosure, rather than risking later and possibly traumatic disclosure. That seems to be something that both Houses have thought is the best way forward.

Brian Iddon (Labour, Bolton South East)

I have given this a lot of thought, but it seems to me that the hon. Gentleman’s proposal would increase the bureaucracy that he was trying to avoid by the previous suggestion. Most of us would want to know whether other information was available. We would want access to all those registers to find out whether we were donor conceived and to see whether they contained other information about us. That would result in a huge bureaucracy.

Robert Key (Conservative, Salisbury)

If that information was available online, it would not. I do not see a problem. However, that is the sort of detail that will have to be looked into. I do not have the answer.

Brian Iddon (Labour, Bolton South East)

Most of us are concerned about the privacy of the individuals and their parents. Making the information available online would not get around the objections that most of us have to putting marks on the short birth certificate.

Robert Key (Conservative, Salisbury)

I accept that argument. The hon. Gentleman is absolutely right; we should not go there. However, it does not destroy the argument that it would be a way of indicating on everybody’s birth certificate where they might seek further information if there was any doubt. Its other great virtue is that it would undoubtedly put some pressure on parents to come clean about their children’s origins.

John Pugh (Liberal Democrat, Southport)

Having had the chance to reflect on our earlier debate, I accept some of the concerns of donor networks that knowing about someone’s genetic origins is not in the public interest, except in rare circumstances. I can imagine that those conducting a research project into the effect of the environment versus inheritance would justifiably feel miffed if some of those who were the subject of research for public health purposes turned out not to be the persons who they thought had been genetically identified. Except in extreme cases, there is no genuine public interest in the public, the employer or anyone else having access to information about a person’s origins. In a sense, the birth certificate is giving away the fact that there has been a donor conception.

However, many people accept that individuals have a right to know about their genetic inheritance. To put it another way, it is wrong in all but the most exceptional cases to withhold that information or to mislead people about it. Although there is a sort of abstract right—one can make inquiries if one thinks there is reason to do so—we have a real right to know our genetic inheritance, and we have the capacity to exercise it.

It also involves someone else having the duty to disclose that information, but who is that someone else? The onus could be put on the parents or the state, but none the less someone ought to have a duty of disclosure. We are struggling with how to balance that duty with other legitimate rights—to privacy, to an undisrupted family life and so on—but neither we nor the Government have a solution that adequately addresses that problem.

The Minister said that the Government were going to think about the matter, with a review lasting more than four years. It may take four years to come up with an adequate solution, but we should not pretend that there is not a problem—and the Bill does not solve it.

Dawn Primarolo (Labour, Bristol South)

The hon. Member for Southport summed up the problem very well. The Committee is struggling—three suggestions have been made on how it might be solved during this short debate—to understand how we can balance obligations to the donor, the parents and the donor-conceived child. The hon. Member for Salisbury said that the point of this—if I am wrong, I am sure he will correct me—was to ensure that we kept up the pressure and encouraged parents to be truthful to the children from the beginning. I concur with that view; it represents everything that the Government are trying to do. We can all quote influential groups that take a different view about why the birth certificate should be annotated and why the new clause should be accepted, although some might go further, taking the view that it is counterproductive and would work against the objective pointed out by the hon. Member for Salisbury.

I pray in aid the Royal College of Nursing, which commented specifically on the new clause rather than speculating about what it might mean. The RCN made it clear that it supported the Government’s position as stated in another place, because we needed to be clear about what we required clinics to do, who must be notified, how any annotations on birth certificates must be provided, and where the obligations lie. The RCN ended up in the same place as the hon. Member for Salisbury. It decided that it was best for the parents themselves to tell the children.

Looking at some of the other stakeholders, it is not just the Royal College of Nursing, a considerable and influential organisation that supports the Government’s position. The Donor Conception Network, which represents donor-conceived children and their parents, also does, and has said so in submissions to Committee members with regard to birth certificates. The Donor Conception Network goes further. It starts by agreeing absolutely—again, who would not?—with the proposition made by the hon. Member for Salisbury, which is that if children are donor-conceived, their parents should communicate that important information when they think it appropriate and by a definite time, after which children have a right to know provided for in legislation.

However, the Donor Conception Network goes on to say that it is concerned that a move to annotate birth certificates, in whatever fashion, may be counter-productive. Parents who planned to tell their children about the details of their conception may decide when registering the birth not to give those details to the registrar because they do not want that sensitive information made public. They may find it much harder to tell the child if they have not been as open as they should be.

My hon. Friend the Member for Bolton, South-East suggested that two birth certificates might be the way forward, but the Donor Conception Network takes the view, and I agree strongly, that it is necessary for the Government to evaluate certain pieces of work alongside the review in order to come to an understanding and proceed. That involves the Donor Conception Network’s planned programme of work, which is supported by the Department of Health, to promote telling children at an early age that they are donor-conceived. The network is working directly with parents to understand the concerns and barriers, and what is necessary to move forward. The network’s programme is concerned with non-identifying information—just the straightforward fact that children are donor-conceived. We can all understand the importance of the rights of donors and of guaranteed anonymity.

Going further, the Department is funding a second project that will work with prospective parents hoping to conceive using donated gametes. Again, we seek to understand clearly what the barriers are and what can be done to help. It is entirely reasonable to say, in what we have all said is a difficult and sensitive matter, that we should pilot and evaluate such work to ensure that we have the best way to communicate with parents and prospective parents. We should get the feedback of information from it, include it within the review on birth certificates and what should be on them and come to the right conclusion. A decision made in haste might not be the right one. We might end up cutting across the important principle, identified by the hon. Member for Salisbury, of parents informing, explaining and discussing issues with their donor-conceived children.

That is why the Government continue to resist putting any compulsion in the Bill to move now. We think that it is sensible to collect the information, speak directly to those concerned, and make a judgement on that basis and no other. I hope that the hon. Member for Boston and Skegness will not press his new clause to a vote, but if he does, with regret and for the best of reasons, I will ask my hon. Friends to oppose it.

Mark Simmonds (Conservative, Boston and Skegness)

I am grateful to all those who contributed to the debate on new clause 1. My hon. Friend the Member for Salisbury made some very pertinent points and some of the issues that he mentioned about the Minister’s review deserve much more detail and consideration. Today’s exchange demonstrates the difficulties in coming to a conclusion. I understand and accept that, but none the less I do not regret having tabled the new clause for debate and discussion; it is important for us to put such concerns, however complex and challenging, on the record.

I am not convinced that the Minister should be prepared to accept a four-year time period in which this should be reviewed. Pressure should be put on whoever is responsible for that review to come to a conclusion, in consultation with the necessary people, in a much shorter time scale. I was also intrigued by the Minister’s defence and praying in aid outside organisations to defend the Government’s position, as there does not seem to be one. The Government’s position seems to be that this is complex and that there should be a review that reports in four years’ time.

I understand why many organisations—those who represent donors and others such as the Royal College of Nursing—do not support the second (a) in new clause 1 about placing

“a symbol to denote the fact of donor conception”

on the original birth certificate. I understand and agree with that, but I felt that without that in the new clause, we would not be able to debate the specific issue.

Of course, the priority must be for parents to inform their children about their origins, in consultation with counselling and other facilities that are available. However, I also think that very detailed consideration must be given to the necessity, where possible, of allowing a child to understand their genetic make up and where they come from as early as possible. A sensible and easy way of doing that is through some mechanism such as an extended birth certificate or via access to other information. I will withdraw new clause 1, but I would like to reserve the right to return to the issue on Report. I beg to ask leave to withdraw the motion.

New Clause 5

Brian Iddon (Labour, Bolton South East)

I beg to move, That the clause be read a Second time.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss new clause 6—Parliamentary Human Fertilisation and Embryology Committee

‘(1) There shall be a Committee of Members of both Houses of Parliament, to be called the Parliamentary Human Fertilisation and Embryology Committee, to consider human fertilisation, embryology and related ethical issues, and to make recommendations.

(2) The Committee shall have power to send for persons, papers and records, to report from time to time, and to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the Committee’s order of reference.

(3) The Human Fertilisation and Embryology Committee shall consist of fifteen members of the House of Lords nominated by the Lord Speaker and fifteen members of the House of Commons nominated by the Speaker of the House of Commons, to be appointed on the passing of this Act to serve for the duration of the present Parliament and thereafter to be appointed at the commencement of each Parliament to service for the duration of that Parliament.

(4) Any causal vacancy occurring by the reason of the death, resignation, or incapacity of a member of the Human Fertilisation and Embryology Committee shall be filled by the nomination of a member by the Lord Speaker or the Speaker of the House of Commons, as the case may be.

(5) The powers and duties of the Human Fertilisation and Embryology Committee may be exercised and discharged by any twelve members thereof, and the Committee shall be entitled to sit and transact business whether Parliament be sitting or not, and notwithstanding a vacancy in the membership of the Committee.

(6) Subject to the provisions of this Act, the Human Fertilisation and Embryology Committee may regulate its own procedure.’.

Brian Iddon (Labour, Bolton South East)

I move the new clause in my name and those of my hon. Friends the Members for Brighton, Kemptown and for Norwich, North.

There was an expectancy in the other place that this House would give guidance on the proposal to create a national human bioethics committee. On Second Reading in this House there was, unfortunately, little or no discussion about that proposal. In her closing speech in the discussion, Baroness Royall of Blaisdon said:

“The Government have made clear their view that there is value in the consideration of bioethical issues in Parliament. We said as much in our response to the committee of both Houses that scrutinised the draft version of this Bill, which recommended the establishment of a parliamentary standing committee on bioethics.”

She went on:

“The Government see merit in a parliamentary standing committee on bioethics but do not see a national human bioethics commission as the way ahead.”—[Official Report, House of Lords, 28 January 2008; Vol. 698, c. 500.]

Is it right that the Human Fertilisation and Embryology Authority—the HFEA—a quango, makes major ethical decisions, mainly without consulting the rest of us, and especially not Parliament? That is not to say that I am not grateful, however, for all the thought that the HFEA has given to bioethical issues in this policy area. Nevertheless, it has been difficult for it on occasions, and it has sometimes made the wrong decision, in my opinion, which it has occasionally reversed after further consideration and in the light of more evidence.

Personally, I would like to see a parliamentary bioethics committee established to consider all bioethical issues, relating to animals or humans. I have tabled these two amendments to sound out right hon. and hon. Members of this Committee today, and to seek the views of my right hon. Friend the Minister. The amendments have been framed in a narrower way than I would have preferred, so that they stand within the scope of the Bill.

The chief medical officer, Professor Sir Liam Donaldson, told the pre-legislative scrutiny Committee for this Bill:

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

On 28 January 2008, Baroness Kennedy of the Shaws, who chaired the Human Genetics Commission for eight years, said in the other place:

“I felt there was a discomfort in some of those issues being with the HFEA, which is seen by the public as a regulatory body. It is confusing to have the regulatory function and an advisory function on ethics combined".—[Official Report, House of Lords, 29 January 2008; Vol. 698, c. 490.]

I share her discomfort.

Alan Doran, acting chief executive of the HFEA, told a symposium at the BioCentre in November 2007:

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

Some opponents of the establishment of a national or parliamentary human bioethical committee have pointed out the existence of the Nuffield Council on Bioethics, which is financed by the Nuffield Foundation and the Wellcome Trust. However, it decides on the topics of debate, not Parliament.

A number of other organisations also cover bioethics, including the Genetic Interest Group, the British Medical Association, which publishes “Medical Ethics Today”, the General Medical Council’s standards and ethics committee; the Royal Society of Medicine, and the Academy of Medical Sciences. I should also mention the Scottish Council on Bioethics, to which reference has already been made today in this Committee. Again, these organisations do not dance to the tune of Parliament, but they are a valuable source of information.

With respect to research, we should not forget the important role that local medical ethics committees play. We could consider that there is a double lock on research of this kind, one local lock, and one national lock, namely, the HFEA. None of those bodies, however, is responsible for making the law, as we are.

Governments or Ministers have established national bioethics committees in a number of other countries, including Austria, Belgium, Denmark, France, Germany, Italy, the Netherlands, Portugal, Sweden and Switzerland, as well as Australia and the USA. However, we must be a little cautious when national committees are created in that way. I cite, for example, what has happened to the US committee. It has become very politicised, if one looks at its proceedings.

Indeed, in its 2005 report entitled “Human Reproductive Technologies and the Law”, the former House of Commons Science and Technology Committee recommended the formation of

“a single commission to develop policy issues relating to assisted reproduction, embryo research and human genetics”.

For right hon. and hon. Members who wish to establish a national human bioethics commission, I recommend that they read Baroness Warnock’s arguments against the proposal in the 2008 Whitsun edition of “Science in Parliament”, which has recently arrived on hon. Members’ desks, and in TheObserver of 13 January 2008. Referring to a parliamentary human bioethics committee, she said in The Observer that

“the overriding merit of establishing such a committee, rather than a new commission, is that it would be a recognised part of parliamentary procedure, often part of that procedure that leads to the passage of a law.”

In conclusion to her piece, Baroness Warnock said:

“I believe that setting up a new style of committee”—

she was referring to a national human bioethics commission—

“independent of Parliament would seem to make the role of Parliament less central, its responsibility and its authority less great. That would, in my view, be an actual weakening of the rule of law.”

I happen to agree with her views.

I am informed that setting up a parliamentary human bioethics committee, or a committee of the type mentioned in my amendments, is not a legislative issue. Perhaps the Minister can confirm that. However, setting up a national bioethics commission, I believe, would require an amendment to the Bill, but I am against such a proposal. Of course, ad hoc committees have been established in Parliament before to consider bioethical issues. Lord Walton of Detchant, for example, chaired a Select Committee on Medical Ethics from 1992 to 1993, which considered the law on euthanasia and assisted suicide.

In conclusion, I believe that we should have a statutory, human bioethics committee to consider the difficult issues that we have looked at today and during the passage of the Bill through Parliament. I look forward to hearing the views of the Committee on the issue, including those of my right hon. Friend the Minister.

Robert Key (Conservative, Salisbury)

I strongly endorse the comments of the hon. Member for Bolton, South-East. I served on the Select Committee to which he referred in the last Parliament. The inquiry into human reproductive technologies and the law visited both Sweden and Italy and met their national bioethics committees. In Italy I was quickly aware that the committee was not what it seemed—seemed to me, anyhow. I think that I recall, for example, that there was only one woman on the committee, which reflected the political reality of Italian democracy, but convinced me that it was not a satisfactory way of proceeding in this country. I also recall that when the Joint Committee scrutinised the Bill last summer and produced our report, the Government listened. The Government took us seriously. They gave the Bill a new title and binned a huge chunk of their proposals. That surely shows the virtue of such a Committee. I commend the Government for listening to Parliament.

Both Houses of Parliament are, de facto, the national bioethics committee of this country. We should be jealous of that. It would not be possible to create another body, independent of Parliament, that would have anything like the authority that we have, with the authority of democratically elected Members, representing every constituency in the country, together with the authority of the men and women in another place, who have come there via a variety of routes, which may evolve in the future. However, we have a de facto national bioethics commission in Parliament itself. We now need to find how to establish a new Joint Committee, which would be a Standing Committee, like the Joint Committee on Human Rights or some such body, which would sit for the duration of a Parliament and would be made up of members nominated, as they are for existing Joint Committees, by the Leaders of both Houses.

At the other end of the spectrum, I endorse what the hon. Member for Bolton, South-East said about local medical ethics committees. I do not think that members of the public generally realise that in every hospital or clinical research establishment there is a local ethics committee which considers all the factors as they are legislated for and played out in their local communities and establishments. They are extraordinarily influential bodies, and they are localised to a degree that makes them credible to our constituents at a local level.

That is the approach that we ought to take in future. We should not rely on the setting up of a joint Committee for the pre-legislative scrutiny of a particular bit of legislation; we should have a permanent Standing Committee of both Houses to deal with such bioethical issues, which will only get more complicated and arise more frequently. It will not be another 18 years before more legislation. Mark my words, Mr. Hood: we will be back within 10, maybe five years, because something else will have happened. Medical technology and science will have moved forward so fast that once again Parliament will have to catch up. The voice of Parliament should set the ethical and moral framework and the regulatory authority should decide on individual cases within it. That is the way we should be going, and that is why I strongly support the new clause.

Ian Gibson (Labour, Norwich North)

I, too, support the new clause. I do not think that there will be any problem with the Nuffield Council on Bioethics, which has done lots of work that I shall explain in a minute. It is quite independent, is financed independently and does fine work.

In the Joint Committee, while we were discussing the Bill, high-octane meetings were held with people from the Lords and the Commons—everyone who had some ethical view about everything—and it was good to have the opportunity to talk about things. There was nothing more tendentious than the need for a father. That evoked some heavy stuff, and there was a lot of disagreement on both sides, but it was important to have that debate. We have never had such a debate properly in Select Committees and so on, because there just ain’t time. We need a place to discuss those issues.

I could say lots about bioethics. It is the fastest growing profession in the medical world at the moment. People are suddenly realising more and more that biology and the biological sciences are developing new technologies and ideas that will have to be considered in terms of society—not just this society but other societies, such as in the developing world and so on. I think that such a Committee would have a lot to say. Some of the things that it would look at include genetic screening and age discrimination. When do we start and stop breast screening? Do doctors behave differently depending on the age of the patient in front of them? I think that I know, but I will not say it here. A lot of discrimination goes on. There are also ethical and legal issues involving human tissue that we have discussed here, such as animal-to-human transplants or xeno-transplantation—the odd bit of pig appears in people’s aortas during some treatments—mental disorders and so on.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. As we are getting to the end of the Committee, I ask the hon. Gentleman to stay in order when addressing the Committee.

Ian Gibson (Labour, Norwich North)

Then, of course, there are stem cells and so on, and pharmacogenetics—it is almost a continual process—and the DNA database. There has never been a more important arena. More and more information is being brought to our notice. We need a place where people can contemplate and think about those issues and build them into hard science and medicine. I am glad to support the idea of a joint bioethics Committee in this place.

John Pugh (Liberal Democrat, Southport)

I warmed to the proposal when it was mentioned on Second Reading, but since then, scepticism has grown on me. I accept that the remit should be wider than defined in the new clause and that the HFEA, the Nuffield Council or whoever do not actually do the jobs envisaged by those who tabled the new clause. Most ethical committees, as I understand them, are basically endowed with a set of principles that they apply with respect to a certain group of professionals. What I think that we are asking for, implicitly, is a bioethics commission, parliamentary or otherwise, to formulate a set of principles to take us out of the moral mire that we are in.

Generally, ethics is a tricky business. I have spent a lot of my life studying it from the philosophical point of view. There is no agreement about what it is or how ethical disputes should be resolved, even where consensus has arisen. For example, in the Warnock report, Baroness Warnock states clearly that she applied utilitarian principles to resolve the moral dilemmas. But if we are not utilitarians, we would simply not buy into that in the first place. There is nothing blindingly obvious with the moral consensus that we have at present, but there might be a pious hope that we can have a bioethics group and, through that, a consensus or solution from a group of moral experts who will just tell us what framework we need to work within.

The existence of moral experts has been a matter of debate since the time of Plato and it is still yet to be resolved.

Ian Gibson (Labour, Norwich North)

He is not here at the moment.

John Pugh (Liberal Democrat, Southport)

No, he is not, nor is anyone who we can be assured knows what is good and what is right. A group of moral experts does not get Members of Parliament off any moral hoof of thinking ethically ourselves. If we think of the committee as a mechanism for reflecting ethical opinion, encouraging ethical debate or ensuring that decisions are made in an ethnically informed way as opposed to pragmatically—I take on board the comment made by the hon. Member for Norwich, North about scientists not being pure—we would have a modest committee that could do a useful job.

However, our difficulty, which no committee can resolve in connection with the legislation, is that we are not working within a clear, ethical framework. There is no clear ethical thread binding all the various moral decisions that are made in the context of the Bill. That is not only my view. I read the evidence presented to committees on draft legislation and the remarks of Professor Haldane and others, and that is exactly what they picked up. There is a series of ad hoc commissions and things that we believe are right on balance, and a series of case-by-case arguments, but if we went for the position that we wanted in respect of the Mental Health Bill and said, “Here is a piece of legislation but, before we get into the detail, let us put in the Bill the moral principles that will guide us”, and explained why we made various decisions in the clauses, we would be in serious difficulty. We would be incapable of taking such action, and many people who reported on the draft legislation said precisely that.

A bioethics committee that is prepared to fill a modest role might have a place in the mix. However, what we shall not achieve—and perhaps what hon. Members are hoping for—is a cast of modern Solomons. We might reach the position when people know why they are making such decisions, as a result of which ethical rationale would be laid out with greater clarity, but we would not achieve wholesale agreement on what is right unless—this is the fear of some people—we rig the committee in such a way that it would be guaranteed consensus.

In the past, many of the debates on ethnical committees have been about whether they are set up fairly or whether the balance is such that the democratic verdict goes in one direction rather than another. I do not know how that can be resolved. A great deal of hard work has to be done. On the assumption that we have something that adds grist to the mill—that adds something to the general picture and informs the decisions of Parliament—there would be nothing wrong with it, but it will not take us out of our current bind of making hard, moral decisions for all time on particular issues.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I declare an interest as a member of the British Medical Association medical ethics committee. The hon. Member for Salisbury mentioned local ethics committees. He is right; they are well developed in research ethics. I was a member of one of those committees for many years. They are moving on apace in respect of clinical ethics in hospitals.

I was on the same visit to Sweden and Italy to which the hon. Gentleman referred, and the system was not ideal. I support the thrust of the new clause, but I want to put it in the context of the Select Committee’s recommendation on human reproductive technologies and the law in 2005. The hon. Member for Bolton, South-East read out a recommendation. We argued that the HFEA’s policy-making aspects and the Human Genetics Commission could be combined usefully in one commission that would advise a standing parliamentary committee.

The problem with the HFEA’s current policy-making role, as some people see it, is at least twofold. First, because primary and secondary legislation can cover only a certain number of things, the HFEA is called upon currently and will be called upon under the Bill to develop policy in areas where there is not regulation and where it has discretion. The HFEA does its best to do that; I am not arguing that it has not done a good job, but because it does not have any of the “antis”, arguably there is not the same degree of debate in its policy-making committee, as opposed to its consultations, that we have here in Parliament.

The second problem is that, as a result of that lack of debate and the fact that the HFEA makes policy in sensitive areas, it is liable to be criticised by politicians. That is the nature of things; politicians criticise those whom we have set up and given the power to make decisions for us. Perhaps that is unfair, given that we have voted for a measure that gives the HFEA discretion to make policy. There was one occasion when the Science and Technology Committee criticised the HFEA for making a decision about pre-implantation genetic diagnosis. The Committee was provoked into doing that partly by the combative performance of the former chair of the HFEA, now Baroness Deech, my constituent. She is a woman whom I greatly respect, but she was quite combative and there was a critical report, which I thought was unfair because the HFEA was only doing what it had been asked to do in the 1990 Act—to make policy.

To avoid that problem, one could have the best aspects of the HFEA’s policy-making function combined with the Human Genetics Commission. It is hard to see a distinction between those two, and indeed, the Human Genetics Commission provided evidence and a view on hybrid embryos during the HFEA’s consultation. The best elements of those could be combined into a committee or commission that gives advice—a Standing Committee of Parliament. Such a Committee would have the advantages of being in Parliament. It would also, because of the way in which such things work, be able to capture all the strands of opinion, so that those, for example, who were not supportive of embryo research would not be excluded from policy development, which the HFEA has to deal with.

For those reasons, the Science and Technology Committee of 2005 was right in its report to say that the policy-making functions could be taken away from the HFEA, which could then concentrate on regulation and inspection, but that that was worth doing only in the context of a parliamentary Standing Committee. For the reasons that have been given in the debate already, there are huge advantages in creating such a Committee.

What would be the powers of such a Committee? Another Select Committee making recommendations mainly to the Government, which the Government felt they had a mandate to accept or reject as they saw fit would not be ideal. That is why a model like the Joint Committee on Human Rights is a good one. In its reports, the Joint Committee on Human Rights does not simply make recommendations to Government and other organisations as other Select Committees do; it gives specific advice to Parliament on human rights issues. In that sense, it goes beyond the normal role of a Select Committee and both Houses can choose to accept or reject its advice.

The second merit of the Joint Committee on Human Rights is that it was set up by statute. I do not know what advice the hon. Member for Bolton, South-East received, but it may not be possible within the scope of the Bill to give a Committee statutory functions. The Joint Committee on Human Rights does have statutory functions in respect of declarations of incompatibility by the European Court. The fact that it is statutory gives it authority; the fact that it is joint gives it authority, and the fact that it is a Standing Committee gives it authority, as well as the confidence and the staff to produce useful reports. We saw in the debates in this House yesterday and the day before that the Joint Committee on Human Rights has now gone further. Where a majority agree with a recommendation, members of the Committee are tabling amendments not in the name of the Committee but which reflect the recommendations of the Committee. The primary function of that Committee, other than its statutory one, is legislative scrutiny from a human rights perspective.

There are significant merits in the idea of a parliamentary ethics committee. It would enable Parliament to visit these issues on a more structured basis and far more regularly than we otherwise do. I do not share the confidence of the hon. Member for Salisbury that we will be back in five years with another Bill. I think that he is right that science will progress quickly in the next five years—perhaps even in the field of IV-derived gametes, but I will not open that up again. Science will move on, but I suspect that we will not be able to come back in the next five years, or even 10 years. However, a parliamentary Standing Committee with authority—even without statutory powers—would put pressure on the Government of the day to enable a free vote to take place, even if it had to make majority decisions. I think that my hon. Friend the Member for Southport was right to say that there would never be unanimity, which would probably be unhealthy, on some of these fundamental issues. They are generally free vote issues so it is difficult for parties to seek a mandate at a general election and say, “This is what we are going to do”, because the matter would be subject to a free vote—rightly, in my opinion—which requires that the Government do something. It is quite difficult to do that, for reasons of the parliamentary timetable, the pressure of legislation and that such measures contain yuck factors, which Governments run a mile from. It is to the Minister’s credit that she has not run as fast as some Ministers might have, from taking on the issues. I am sure that she enjoyed the prospect of dealing with the Bill.

I do not think that we are in a moral mire. If we are, I think that we are climbing out of it with measures such as the new clause. There is a clear basis for establishing such a Standing Committee. Its remit should be wider than simply embryology. I accept the point made by the hon. Member for Norwich, North that it might have been difficult to raise the issue within the scope of the Bill if the Committee proposed in the amendment had not been restricted to embryology. If this is a probing amendment, I hope that the Minister is listening and will come back with a proposal that has the support of a number of Select Committees. I echo the view of the hon. Member for Salisbury that not only did the Joint Committee that considered the Bill do good work, as did the Science and Technology Committee on the hybrids issue, but that it was good that the Government listened and changed their position. They were not accused of a U-turn, but were applauded for listening—I repeat that. I pay tribute to all the members of the Joint Committee, especially the Chairman, my hon. Friend the Member for Harrogate and Knaresborough (Mr. Willis), for his work.

Although I understand that the new clause is probing, I would like to associate myself strongly with the thinking behind it. I hope that we see something like the Committee that the hon. Gentleman proposes, to give Parliament the ability to debate emerging ethical issues transparently—so that the public can see us debating it—and with some effect .

Mark Simmonds (Conservative, Boston and Skegness)

I would also like to express my sympathy for the new clause, although I am not sure that its wording is correct because it might have some knock-on effects, which the Minister will probably come to. I would like to explain three or four reasons why I am sympathetic to the general thrust of what the hon. Members for Bolton, South-East and for Norwich, North are trying to do.

First, clearly, if this Bill is to last as long as the 1990 Act—18 years—it is going to have to be amended by a subsequent series of regulations, provision for which is scattered through the Bill. As we have discussed, many of the regulations will be subject to the affirmative procedure, but we all know in the House that it is very rare, despite consultation, for regulations to be altered significantly. A Committee such as that proposed could have a remit of examining the regulations that are subsequently used to amend the Bill. That might be a reason for the Government not to want such a Committee, but I think that that, among other functions, would be a good remit for the Committee.

The second reason for looking carefully at such a Committee is that it would provide a positive and necessary link, both for the scientific community and for those concerned about the ethical issues that surround such complex areas. There is not a permanent body related to Parliament that has that specific role at the moment.

The third issue, which other hon. Members have touched upon, is that there is understandable discomfort with the HFEA operating in a vacuum and deciding and making up its own policy—almost as scientific developments occur—because there is no other responsible body. Indeed, the point made by the hon. Member for Oxford, West and Abingdon was absolutely right: there is not inevitably a balance on the HFEA to give the other side of the ethical dilemma of many of those scientific advances. That is another strong reason for looking at the concern closely.

The other issue, which was given as a defence as to why certain things are in the Bill, is that we are merely catching up with scientific advancements that the HFEA has already approved. That is primarily because no detailed discussion from an ethical position has taken place in Parliament since the passing of the 1990 Act, although obviously regulations have been discussed in Committee. That provides another very powerful reason for why the Committee should be set up.

Three or four difficult areas must be addressed with regard to the remit of the Committee. The first is the ethical balance of who will sit on it. I strongly believe that the Committee should be made up of parliamentarians. It should not be extended beyond that for the reasons set out clearly by the hon. Member for Bolton, South-East. The size of the Committee must be carefully considered.

Mike Penning (Conservative, Hemel Hempstead)

My hon. Friend makes the good point that the Committee should be made up of parliamentarians. However, with the greatest respect, it should not be made up of the usual suspects. Its members should not be those who have always sat on Committees considering such matters. It must reflect a broad view from within the House.

Mark Simmonds (Conservative, Boston and Skegness)

My hon. Friend makes a sensible point. Having said that, there is a balance to strike. If such a Committee were set up, it would be important for people with expertise, knowledge and experience to be on it, as well as those who could bring fresh ideas and thoughts. I would a view a Committee of around 30 members, both from this House and the other place, as too large to co-ordinate in any sensible way.

We must also do some detailed thinking about the remit and standing of the Committee and its purpose and scope. What will it scrutinise, who will it advise, and on what basis? It is a very strong argument that if we want the Bill to survive for a long period, there must be a body based around Parliament that has democratic accountability and that provides ethical and scientific analysis as scientific advancement takes place.

My final point is that after the next general election, the Minister will have a lot more time on her hands. She might wish to participate significantly in such a Committee.

Dawn Primarolo (Labour, Bristol South)

Well, at least the hon. Gentleman acknowledges that I have a safe seat.

A number of issues have been raised, some of which I agree with and some of which I do not. I will try and proceed through the points. We all echo the point made by the hon. Member for Salisbury and my hon. Friends the Members for Bolton, South-East and for Norwich, North about the importance of Parliament deciding. We are elected to come to terms with, and decide on, inevitably very important issues on behalf of our constituents. The issues raised about matters of embryology, for instance—although that is not the only ethical issue—are matters that we as Members of Parliament must consider.

On a number of occasions during consideration of the Bill, through the review of the 1990 Act and during pre-legislative scrutiny, there has been a debate about whether we should have a wider bioethics commission, and whether that should be independent of Parliament or made up from representatives of both Houses. Clearly, as the Bill has proceeded, it has raised ethical, legal and social issues giving rise to a diverse range of views, some of which are very strongly held. How we in Parliament and those elsewhere respond to such issues goes to the heart of our existence as individuals and families in society. It is, quite rightly, the place of Parliament to consider this.

In moving the new clauses, I understand that my hon. Friends had to ensure that the provisions were in the scope of the Bill. I do not think that this matter should be limited only to the issues that have been raised during the proceedings of this Bill, and I understand that my hon. Friends have raised the issue to start a clear discussion in Parliament about whether there is support for such a proposition. I am of the view that the structure that we have set up with the HFEA, the way in which it regulates—it is not the only source of information and advice for us—and the way in which we have proceeded with the Bill are correct. I absolutely do not accept that there is something wrong with the HFEA. It is, frankly, not very helpful to hear senior Members of Parliament talk about needing “antis” on the HFEA, because that fundamentally misunderstands the nature of the authority.

The nature of the authority is that it advertises for candidates, and anyone—people of all faiths and cultures—can apply. However, potential members must be prepared to accept the fundamental principles behind the authority’s existence. That has served us well over a period of time, but of course, the arrangements are further reinforced by the fact that appointments are made by the Appointments Commission on behalf of the Secretary of State.

While we are debating an incredibly important issue, I hope that nobody outside our proceedings here will read what has been said today and draw from it that we do not have confidence in the process. I know that it is not my hon. Friends’ intention to suggest that we do not have confidence in the HFEA’s ability, as constructed by Parliament, to discharge its duties.

Of course, as the hon. Member for Salisbury pointed out—and I have always been of this view—parliamentary scrutiny has demonstrated very clearly that Parliament has the ability to discuss bioethical issues effectively, whether in Select Committees, during pre-legislative scrutiny or through consultation. The Science and Technology Committee under the chairmanship of my hon. Friend the Member for Norfolk, North produced a very extensive report in 2005.

Ian Gibson (Labour, Norwich North)

I will have that constituency too—it happens to be a Liberal Democrat seat. Mine is Norwich, North.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. If the hon. Gentleman wishes to intervene, he should do so. If not, the Minister can carry on.

Dawn Primarolo (Labour, Bristol South)

I apologise to my hon. Friend if I have had his constituency incorrectly recorded in Hansard.

A very good and extensive report was produced in 2005, which was the outcome of a year’s study of human reproductive technologies. It had considerable influence on the Department of Health’s subsequent public consultation. As has already been acknowledged, the Bill has changed considerably from its draft form.

The real point—my hon. Friends will correct me if I am wrong—is whether we need a wider bioethics Select Committee or Joint Committee of both Houses to consider not just issues that are pertinent to this legislation, but wider matters. Personally, I want parliamentarians to continue to do that, and I think that the Government would resist any idea of anything independent.

As my noble Friend Baroness Royall said in response to such a debate in the other place, we see merit in a Standing Committee of Parliament on bioethics. However, that is not something that it is appropriate to set out in primary legislation, and it is not a matter for this Bill—we certainly could not get the proposal in order, given the wider considerations. That is ultimately a matter for Parliament to consider, so let me gently suggest how a consensus may emerge.

The decision to set up a new Select Committee is one for the House—or both Houses, if it is decided that there should be a Joint Committee. Of course, the Government would consider any suggestion for a new Select Committee that had sufficient support from all parties. In addition to taking account of the views that have been clearly expressed during our deliberations in Committee, it might also be appropriate if views were sought from the Modernisation Committee and the Procedure Committee about why and how this step could be taken forward. I am advised that this would be a matter for the House and that progress should be made through the usual channels.

I hope that my hon. Friend the Member for Bolton, South-East will not push the new clause to a Division, but as the Minister responsible for the Bill, I will ensure that I draw the comments of all members of the Committee on the wider issue to the attention of the appropriate authorities in the House. Such a Committee, perhaps a Joint Committee, could strengthen our understanding, and the way in which we discharge our roles as Members of Parliament, when we address these important social and ethical issues.

Brian Iddon (Labour, Bolton South East)

I am grateful for my right hon. Friend’s comments, which are very acceptable. The other place asked for guidance from this end of Parliament on the issue and it would have been remiss of us if we had not discussed it this afternoon. I think that some guidance has been given from this Committee to the other place and to Parliament in general. As my right hon. Friend pointed out, we now need to lobby outside this Committee.

The hon. Member for Oxford, West and Abingdon referred to the Joint Committee on Human Rights. My idea was to have a parallel Committee with a similar membership. It has always amazed me that we discuss human rights in this place, but we do not, in parallel, discuss ethics, which are becoming much more important as Bills such as this pass through Parliament. It might well be that 30 is too many members for the Committee, but the figure of eight that was mentioned in the other place would be too small. Somewhere in between those two numbers would be acceptable, I am sure.

Obviously, the new clause is too narrow; it had to be drafted in such a way that it would remain within the scope of the Bill. My preference would be not only to have a broader Committee for human bioethics, but to introduce consideration of animal bioethics, because matters such as xenotransplantation cross both the human and animal spheres.

It has been good to have the debate and I thank my right hon. Friend again for her comments. I am sure that we have given some guidance to the other place as the Bill has proceeded, so I beg to ask leave to withdraw the motion.

Dawn Primarolo (Labour, Bristol South)

Before we conclude our proceedings, I would like to make a few comments. I would like to thank you, Mr. Hood, and Mr. Gale for the excellent way in which you have helped us through the Committee proceedings. My thanks to the Clerks, who are ever vigilant and have done their best to ensure that we debate all the issues identified as necessary by the Committee. Thanks to the Hansard staff, to the police officers and to those to whom I am not normally supposed to refer: my officials. I thank them for all the hard work—over a long time now—that they put into producing an excellent Bill.

I would like to thank the hon. Member for Boston and Skegness for his measured, thoughtful and constructive approach, which I appreciated. We have been considering subjects that were difficult and challenging for me, as a Minister, but I know that that would be even harder in opposition without such detailed support. The issues that he raised helped our debate, as did those raised with considerable skill by his hon. Friends.

I also thank the hon. Member for Oxford, West and Abingdon, who turns out to have many skills—all excellent. He truly has followed and worked on the subject for a long time. He has considerable expertise. We are glad that he shared some of that expertise with us, but we might have been here longer had we heard it to its full extent. I thank him because I know that he follows the debate with great diligence and passion. His colleague, the hon. Member for Southport, has not always agreed with him. It was interesting to see one intervening on the other during speeches. They disagreed slightly, but they have been helpful to the Committee.

Finally, I thank my hon. Friends, who brought considerable knowledge, patience, advice and consideration to their support of me as the Minister on the Bill, even when they did not always agree with me. I am particularly referring to my right hon. Friend the Member for Coatbridge, Chryston and Bellshill, who is not able to be here this afternoon.

This has been an excellent Committee and I am grateful for our proceedings and everyone’s participation. I look forward to further debate on the Floor of the House.

Mark Simmonds (Conservative, Boston and Skegness)

I join the Minister in expressing my thanks to you, Mr. Hood, and to Mr. Gale for the excellent way in which you have chaired the Committee and for the advice and guidance that you have given as and when it has been appropriate. I also thank, in particular, the Clerks who have been involved in the Bill, who have provided support and advice to Opposition Members, who, as the Minister rightly pointed out, do not have the support of the expert civil servants that she clearly has.

I thank members of the Committee, particularly my hon. Friends the Members for Salisbury, for South-West Devon, for Hemel Hempstead and for Rugby and Kenilworth, who have all participated in our proceedings. In their individual ways, their informed and measured contributions have been helpful and constructive in our debates.

I wish to say how much I have enjoyed the contributions from, and the interaction between, the hon. Members for Oxford, West and Abingdon and for Southport. It is always said that the Conservative party is a broad church, but we have seen today that the Liberal party is even broader. It would be helpful at some point to see whether the two hon. Gentlemen agree about anything. I also thank Labour members of the Committee, particularly the hon. Members for Norwich, North, for Bolton, South-East and for Brighton, Kemptown who, again in their individual ways, made significant contributions at different times in our proceedings.

Finally, I thank the Minister for, most of the time, her extremely calm and considered response to the debates. She has always been helpful, constructive and clear, and she responded with great clarity to the concerns that were expressed, the questions that were asked and the amendments that were tabled. Such issues are complex and challenging. I am sure that the right hon. Lady would acknowledge that neither she nor I are scientists and that trying to try to get to grips first with the science, and then overlaying the ethical issues, is extremely challenging for anyone who does not have a grounding in such areas. I wish to put on the record the fact that I thought that she did so with great aplomb. She has obviously put a tremendous amount of work into understanding the detail behind the Bill. While we might not agree on every political issue, I hope that the constructive way in which the questions have been put and the amendments have been explained have led to a constructive response from the Government, and that that will mean that the Bill, when enacted, will last just as long—if not longer—than the 1990 Act.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I take this opportunity to thank you, Mr. Hood, and your co-Chairman, Mr. Gale, for the way in which you chaired the Committee. I note that we have finished earlier than we had catered for, which is a testament to the fact that we have made excellent progress throughout. It is only fair that I first associate myself with the remarks of the Minister and the hon. Member for Boston and Skegness in thanking all those who have been of great help to the Committee.

I congratulate my hon. Friend the Member for Southport on putting his views so well. We have been debating a free-vote issue, and clearly neither he nor I have the skill shown by the hon. Member for Boston and Skegness as he represented all strands of the Conservative party. We decided to split the questions and ensure that we gained clarity from both sides on some fundamental ethical issues. On the one hand, I was delighted that my hon. Friend was to be a member of the Committee while, on the other hand, I was worried about it because he puts his views, which I sometimes do not share, so well.

I thank the hon. Member for Boston and Skegness for his kind words, as I thank the Minister for hers, although I wish to reject absolutely her scurrilous allegation that I have any skill as a draftsman—or that I claim such skill—or even that I have skill as a conciliator. I thank her for her approach in her more positive moments, which made being a member of the Committee as much of a pleasure as her less positive moments made it less so.

In concluding, I thank Becky Purvis from my office. She has had a heavy load to bear over the past few years on the issue. I welcome the contributions to the debate from other members of the Committee whose parliamentary career has been engaged in the study of some of the scientific issues involved. Although we have finished our proceedings well within time, I hope that that does not mean that we will not have enough time to debate on the Floor of the House issues that need to be decided on a free vote. We have had so few Divisions during our proceedings and finished so quickly because we know that other voices need to be heard on certain issues. I look forward to hearing them on Report.