Human Fertilisation and Embryology (Deceased Fathers) Bill

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Mr. Boswell: I am sure that the hon. Member for Oxford, West and Abingdon has performed a service to the Committee by raising these issues. I have no particular expertise on the 1990 Act and I cannot claim to have made a detailed perusal of the Bill, although it is often useful to come to it fresh. I also do not have any constituency experience of the public policy aspects. We are all sorry about the case of Mrs. Blood. It would seem from what the hon. Gentleman has just said that it would be difficult to accommodate her entirely understandable wishes within the legislation as it might be amended.

The hon. Gentleman's contribution gives me cause for some pause. I come, perhaps reluctantly, to a different conclusion from him. First, it is always interesting—and I make no strongly political point—when a Liberal Democrat seeks to be less libertarian and more restrictive. Knowing his attitude to many matters, one would have put him on the liberal wing of his party. If he is warning the Committee that there is a problem here that is worthy of consideration, we should take note. Secondly, although for the reasons that I have already given, I have not consulted the HFEA on this matter, I also know Ruth Deech and I have a high regard for her and for the work of that authority. If it has reservations, they should be treated seriously.

The hon. Gentleman's third point concerned consent. I think that the Committee would agree, in the light of Alder Hey and the increasing litigiousness of society, as well as the demands we all make or the expectations we may have of the health service, that there should be a progressive raising of standards and a greater degree of transparency and clarity about what is required and what is delivered. None of those matters gives me cause for concern.

However, it appears from the hon. Gentleman's comments—I crave the Committee's indulgence if I have misunderstood the Bill—that two different themes may have become conflated. They centre on the different uses of the word ``treat'' and the phrase ``consent to being treated''. As I read the Bill, the consent to being treated is, to use a concept that I touched on in my first intervention, fundamentally a registration issue. Was the father happy to be treated as the father? That has nothing to do, except contingently, with the medical treatment of the father to obtain the gametes for the conception to take place. It is a separate process. It is a registration and legal process. Was the father informed and aware of it?

Partly, in the light of the Blood case, although perhaps not exclusively, I construe from the Bill that the father should be treated as being the father of the child, unless it can be proved that he did not consent to being so treated. In other words, it is a legal hurdle to prove that he is happy with that process. In cases where he is unable to give an informed consent, perhaps because he is comatose, the absence of any prior indication that he was not so consenting would suggest that he had given implied consent to it. That may be a hard test and there may be difficulties.

The hon. Member for Oxford, West and Abingdon has referred to the possibility of illegal and unethical acts. However, it is a reasonable practical test that also applies to wider issues of public policy on human fertilisation. If a test were to be imposed—in registration, rather than in health service or operational terms—to determine whether consent had been given, it would clearly be good practice, for reasons referred to in the McLean report, for that consent to be in writing. However, supposing consent were not available for some reason—perhaps because the written consent had got lost, or was not regarded as legally valid—and the putative father was either dead or comatose, it would be impossible to reactivate that consent, even if everyone agreed that in fact that would have been the intention of the putative father. It would be impossible to recover the position. It seems to me that that is what the Bill is about. Perhaps the hon. Member for Northampton, South can reassure the Committee about that. I see him nodding, and feel full of anticipation.

As the hon. Member for Oxford, West and Abingdon said, that is quite a separate issue from obtaining consent to medical treatment. I doubt whether there is any dissent in the Committee on that. Of course, it is also good practice to obtain consent to medical treatment. It is wrong and unethical, and should be illegal, for doctors to intervene without that consent being explicit, in whatever form it can best be obtained in the circumstances. No one wants to send a signal from the Committee suggesting that we are prepared for anyone to cut corners or to play God in that respect. However, with respect to the hon. Gentleman, after listening to his argument carefully and at some length, consent should not necessarily be incorporated into the Bill. There are many things that we should do about consent, but I am not sure that we should consider them in the Bill. There is a real need to accommodate Mrs. Blood, and a limited number of other cases. I am worried that the hon. Gentleman's well-intended amendments and interventions, although it is right that they should be discussed, may have the effect of turning aside from the intention of the Bill. That makes it difficult to accommodate the hard cases that have already taken place, and the Bill is not the right place to be dealing with important consent issues about medical treatment. I notice the hon. Gentleman grimacing. Perhaps he is right to do so. We all understand—there is no dissent among us—that it is good practice to put consent in writing and to formalise it in advance of the event, wherever that is possible. However, as the hon. Member for Stourbridge has pointed out, a situation in which everyone has acted with good intentions but where it has not been possible to have formalised, written consent—and it is certainly not always possible to prove that it has been done—difficulties may be created for the child. There may also be a difficulty for the mother of the child. That will not have progressed the matter from the Blood case, and in an attempt to meet a wider objective, we may have failed on our narrower objective. At the moment, my reservations are tentatively against the hon. Gentleman's amendments.

Dr. Harris: The hon. Gentleman should be aware that he is opposing the thrust of chapter 2 of the McLean report, which is clear about the importance of consent. The hon. Gentleman feels that the timing of the Bill is not right in respect of consent issues. The Bill amends the 1990 Act. The thrust of the McLean report—and these issues ranked higher in the report than the Bill—was to ensure that consent is buttoned down in terms of the quality and lawfulness of the 1990 Act. The hon. Gentleman is entitled to his considered opinion, but he should acknowledge that he is rejecting the thrust of the McLean report.

11.30 am

Mr. Boswell: I sought to distinguish between consent to be treated as a father and consent to being medically treated in order to become a father. Those are interrelated, but different, concepts. I am against the hon. Gentleman's camp in certain respects. The Bill is an honourable and honest attempt to cope with the difficulties and human problems that arose during the 1990s. No one is arguing that we should fail in future to tighten up procedures to obtain written consent both to be registered as a father and to be treated as a father. My fear—the hon. Gentleman acknowledged the difficulties—is that in attempting to set higher standards in future, we might end up being unable to accommodate the mistakes of the past. If the Bill were of no value, it would not meet the needs of the individuals whom we all want to benefit from it.

I shall say no more because I have no final or settled view on the matter. I hope that the hon. Member for Northampton, South can satisfy me that he is not trying to put one across the Committee. I am sure that he is not.

Mr. Tony Clarke: Perish the thought that I would try to put one over the Committee. The intent of the hon. Member for Oxford, West and Abingdon is to be applauded. He wants to ensure that the McLean report's recommendations are upheld and put on to the statute book. Many hon. Members would share that objective.

I apologise for the brevity of my response, but it would be a denial of the purpose of my private Member's Bill to become heavily wrapped up in the debate about consent, the legality of the removal of sperm, and treatment. From the outset, the aim has been to change only the part of the 1990 Act that deals with registration. I said on Second Reading that if we entered more deeply into the moral debate, it would be impossible to proceed and press the Bill through its necessary stages. The amendments would prevent us from achieving that narrow objective.

The removal of sperm is not governed by the 1990 Act. Whether it is lawful to remove sperm is governed by common law. That is the current position and I do not want to alter it. If a child is denied registration—denied having his father's name on the birth certificate—I believe that it is in breach of the 1979 United Nations convention on the rights of the child. Article 2.1 states:

    ``The rights accorded to each child as set out in the convention should be respected without discrimination of any kind, including that of the child's birth or any other status.''

If we fail to implement the Bill, we will also be in breach of articles 8 and 14 of the European convention on human rights, which deal respectively with the rights to choose or discover who one is and to enjoyment of rights without discrimination of birth. Therefore, the Bill will ensure that British law is brought into line with the laudable intentions of both the UN convention on the rights of the child and, more specifically, articles 8 and 14 of the European convention on human rights.

I have already said that the removal of sperm is not covered by the 1990 Act, but is governed by common and criminal law. If sperm is removed without consent, that may constitute a battery under criminal law and may give rise to civil action in trespass or negligence if the man lives, unless it is done, for example, in the person's best interests. Professor Sheila McLean discussed those issues in her report, which led to the Bill. I heard the request to write to Professor McLean and I would have no objection to that letter being sent.

The hon. Member for Oxford, West and Abingdon talked about not only removal of sperm, but treatments. Written consent to treatment is a requirement of the 1990 Act unless it is carried out abroad, but, under common law, written consent is not required for the removal of sperm. In the Diane Blood case, which he mentioned and is perhaps uppermost in our minds, one brave lady fought long and hard for the right to put the father's name on her child's birth certificate. That was not tested in the High Court, and the Court of Appeal emphasised the importance of consent, but it was not tested.

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