|Human Fertilisation and Embryology (Deceased Fathers) Bill
Ms Debra Shipley (Stourbridge): The hon. Gentleman makes some interesting and valid points that should, perhaps, be addressed at a later stage or in another place when we have taken on board what he has said, undertaken further investigation, and considered the ramifications of that.
Will the hon. Gentleman expand on what he said with regard to illegality and legality in the context of the rights of a child and the UN convention on the rights of the child?
Dr. Harris: The hon. Lady makes a fair point. All the commentaries on the discussion emphasise that a balance should be struck between the rights of the child and the rights of men with regard to their bodily integrity, the use of their gametes and, unless they behave recklessly, their consent to paternity. To express the matter in tabloid terms, men have rights too.
The rights of the child are, of course, important. The ambit of the Bill is to provide those rights, and I therefore wholeheartedly endorse it, subject to the amendments. However, I cannot endorse the assault of someone by the taking of their gametes and the creation of a life without their lawful consent, simply to meet the presumed rights of a subsequent child. Professor McLean describes in detail why those concerns should be accommodated explicitly and in terms. In any ethical code, the principle of chronology should be given consideration, and a child can, of course, be produced only after the rights of the father have been considered. The right to control the use of one's gametes should also have been given a higher priority than the right of a child to have a father's name on its birth certificate: the latter is important, but the former right is critical and fundamental.
Professor McLean addresses the issue in detail, and I want to put some of her comments on the record. Her report was accepted and endorsed by the Government. In the summary, she states:
The report continues:
Ms Shipley: I am interested that the hon. Gentleman focused on the McLean report in his reply. I do not have it in front of me but, from memory, McLean said that if the GovernmentI realise that the measure is a private Member's Billfail to take action to change the law, Britain might actually be in breach of the UN convention. The report can be used in several ways to substantiate my argument on behalf of the child, as opposed to the hon. Gentleman's argument.
Dr. Harris: I believe that the hon. Lady is incorrect. Obviously, I cannot ask for the sort of help that the Bill's promoter has, but the relevant section of the report states quite clearly that European case law certainly allows for member states' law on the matter to determine what is and is not lawful. I endorse the majority of the Bill's intention because, if it is lawful in common law and statute law to store and use gametes, it is unreasonable to denyunder UN convention rights, as well as European convention rights and European lawthe child the right to have the father's name on the birth certificate. If I am given the chance, I will find the relevant section in the McLean report that states that.
I wish to make it clear that we are not discussing the general case. We are discussing the specific case, in which it has been established that there has not been lawful storage or use, nor lawful removal of the gametes with consent. Prompted in part by the hon. Lady's intervention, I will quote further from the report. In paragraph 1.12, Professor McLean discusses whether the general rulethat lawful consent needs to be obtained for removal of gametesmight be waived in various circumstances. It states:
I have not found any source of expert opinion that supports the purpose of the unamended Bill, which is to meet the rights of that very small minority of children for whom there is concern that the obtaining of gametes was unlawful. Clearly, in the majority of cases that does not arise. I do not believe that we are talking about the case in the hon. Lady's constituency about which she spoke briefly but eloquently on Second Reading and about which she has campaigned for a long time. We are talking about cases such as the Diane Blood case. Paragraph 1.13 of the McLean report states:
We should consider how that situation can be remedied with some sort of compromise; to do so now will allow the hon. Member for Northampton, South to deal with it in his reply. The hon. Gentleman may want to write to Professor McLean to get her views on the debate. I quote from her report but I do not claim to speak for heralthough, because I serve on the medical ethics committee of the British Medical Association with her, I know the direction from which she tends to come. The Bill would allow the father's name to be put on the birth certificate in cases involving the lawful obtaining, storage and use of gametes or embryos. It would also allow itin future and retrospectivelywhere those conditions do not obtain, and where there has been unlawful obtaining of gametes or embryo.
We have several cases to consider. I shall deal with ones where there is no problem. The measure is clearly sensible in regard to cases where consent for the removal of gametes has been legally obtained, with a view to subsequent and prospective treatment and therefore paternity. The 1990 Act is in a sense defective. Because it goes out of its way to ensure that estates could be closed, providing that there should be no rights of succession to children born, say, 30 years after the death of a fatherusually it is a fatherit closed down the possibility of having the father's name on the birth certificate. I have no problem with cases where consent has been legally obtained and other members of the Committee and of both Houses probably will not either.
I also do not have a major problem with the retrospective application, for the very reason that the hon. Member for Stourbridge (Ms Shipley) gave on Second Reading when questioned by the right hon. Member for Bromley and Chislehurst (Mr. Forth) on retrospectivity. There is a general presumption in law that retrospectivity is wrong; indeed, some of the promoter's own amendments show how difficult it is to get the drafting on retrospectivity right. The argument in defence of retrospectivity is that consent was given. The hon. Member for Stourbridge said in that debate:
There are, however, significant problems in two further cases. The first is a prospective case in which even when consent has not been lawfully obtainedit would have been established case by case in common lawthe Bill will provide a remedy for a mother who may be a party to obtaining gametes without consent. It would usually be the mother who is involved; it would be surprising if a medical practitioner waded in without a request from the prospective mother, the partner of the gamete provider. That would send the wrong signals. It would not fit in with the spirit of Professor McLean's recommendations, and would not be satisfactory to the HFEA, as recorded in the letter that I quoted from the chairman, Ruth Deech. I know of no remedy for such problems.
The second case concerns a retrospective application when it has been established that there was not lawful consent. It would be a reasonable compromise if the wording could be changed to ensure that the children concerned could benefit from having their father's name on the birth certificate because there was some doubt, until it was established by the High Court in the Blood case, that written consent was required. It may not be easy to frame such a proposal, but it must be possible. If we are to go for retrospective lawthat is, an ad feminem creation of law specifically to deal with Mrs. Blood's casethat should be acknowledged in the Bill and should refer only to retrospective cases where proper consent was not obtained. Professor McLean's recommendation is that there should be no discretion for the HFEA to endorse subsequent actionexport of gameteswhen consent has been lawful. That is an extremely powerful point; I would find it fundamentally difficult to allow prospectivity in amendments to the 1990 Act that do not take account of the importance of consent.
I invite the hon. Member for Northampton, South to consider such a compromise, if there is sufficient parliamentary time to do so, and to take into account the views of Professor McLean and other experts on the matter. Despite the strong terms of the HFEA's representations, it recognises the value of such an approach. In Mrs. Blood's case, I believe that the doctor concerned telephoned the HFEA for advice. There was doubt about whether the sperm should have been removed and there was a ``without prejudice'' permission to store it pending a final decision on whether there could be further use of that sperm. In spite of having huge sympathy for Mrs. Blood, allowing a change in the law to enable her to have Mr. Blood's name on her child's birth certificate should not mean that the House has opened the way, either to sending the signal that I have described, or forcing a situation where, following an unlawful obtaining of sperm without proper consent for paternity, it is possible for that paternity to be registered. That is why the first part of my amendment that talks about the need for the consent to be lawful is even more important than lawfulness in the use of gametes.
That concludes my comments on amendments Nos. 7, 10, 13 and 16. If the argument applies to the case of a married woman using her husband's sperm, it applies to the other three cases: married and using donor sperm; unmarried and using the partner's sperm; unmarried and using donor sperm. That is why the amendment is written in the same terms in those four cases. I may wish to return to the other amendments that deal with substantially different matters once I have heard hon. Members' contributions.
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