Human Fertilisation and Embryology (Deceased Fathers) Bill

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Mr. Clarke: Dealing first with the last point made by the hon. Member for Oxford, West and Abingdon, removal of sperm without consent would constitute battery under criminal law. It could give rise to civil action on the part of the person concerned. I hope that that suggests to the hon. Gentleman that such acts need not go unpunished.

Dr. Harris: I believe that the McLean report points out the shortcomings of those provisions. Dead men cannot sue for negligence and men who do not recover cannot be party to criminal prosecution. Sheila McLean draws attention to questions about the adequacy of that approach, which others have raised too. Would prosecutions really take place, without the person whose rights had been breached to bring them or to co-operate in bringing them?

Mr. Clarke: I accept the hon. Gentleman's concerns, although in those rare cases involving sperm from someone no longer living that had been taken without consent, there would still be no rights of succession or inheritance. The type of action in question would arise only in a narrow set of circumstances.

I shall try to deal quickly with the hon. Gentleman's arguments, without leading him to feel that they have not been adequately answered. Amendment No. 5 would prevent registration of a woman's late husband as father of a child where treatment—artificial insemination using the late husband's sperm or implantation of an embryo created using his sperm—took place outside the United Kingdom. The amendment would also prevent registration if any such treatment was provided in the United Kingdom by a person not licensed to do so.

Proposed new subsection (5A) does not specify where the treatment concerned should take place. That is because there is no equivalent provision in the 1990 Act and because of the common law presumption about the child of a marriage—that the husband is the legal father of the child. The presumption may be rebutted, of course. The amendment would therefore distinguish between cases in which the father was alive and those in which he was dead. Men who were alive would be presumed to be the father wherever the treatment took place. However, in cases where the father was dead, the treatment leading to conception would have to have taken place in the United Kingdom.

The 1990 Act provides that a person who without a licence provides treatment governed by the Act commits a criminal offence punishable by imprisonment, a fine or both. As I have said, the sanction should be applied against the practitioner rather than the woman carrying the child. The woman would, as previously stated, bear the additional burden of having to produce evidence as to whether the person carrying out the treatment possessed a licence. That burden is not placed on a married woman whose husband is still alive. It would be a further instance of a distinction being drawn between circumstances in which the father was alive and those in which he was not. That is not proportionate given that, where the husband is alive, his registration as father will provide evidence of legal rights for the child in respect of succession and inheritance. The Bill does not provide any such rights; it simply allows the man's name to go on the birth register.

Amendment No. 6 would prevent the registration of a woman's late husband as the father where artificial insemination using his sperm or implantation of the embryo created using his sperm takes place in the UK but is undertaken by a person who is not licensed. That is not proportionate given that, where the husband is alive, his registration as father again provides evidence of legal rights for succession. Again, it draws a distinction between the father who is alive and the father who is not.

12.30 pm

Amendment No. 8 deals with treatment services in the UK. It would be illegal to offer such services in the UK without a licence. It is necessary to ensure that, if treatment takes place in the UK, the person carrying out the treatment has the necessary licence. The hon. Gentleman raised questions about the differences between new subsections (5A), (5B), (5C) and (5D). New subsections (5C) and (5D) do not cover artificial insemination; they refer to the use of donor sperm. If a woman uses donor sperm after the partner's death, how can it be said that the man intended to be the father? That reflects the provision in the 1990 Act. If donor sperm is used, it can only be used before the man's death to create an embryo. That is an important distinction in respect of the points that the hon. Gentleman has made.

The hon. Gentleman asked why, particularly in new subsection (5D), there are limits to treatments provided by a person to whom a licence applies. The 1990 Act has a tougher regime in respect of cases where the parties are unmarried and donor sperm is used. The treatment must be provided in a licensed clinic and treatment must be provided to the woman and man together. That provides an additional safeguard as to the intent of both parties in respect of the bringing about of that child.

Dr. Harris: Is the hon. Gentleman comfortable with that discrimination against long-standing partnerships where there is not a marriage certificate?

Mr. Clarke: I am comfortable with the safeguard. I do not think that it is discrimination because it allows the father's name to be placed on the birth certificate, but it provides an additional safeguard. However, I say openly that if the hon. Gentleman feels that the matter warrants wider discussion or debate—perhaps a total rethink and overhaul of the 1990 Act—that would be the place in which to make any such amendments. If he makes them at this stage, we discriminate and create a difference between the cases of mothers who have children by deceased fathers, and those who have children through donor sperm or artificial insemination through live fathers. The most important point is that the amendments create discrimination in respect of cases where the father is deceased.

Dr. Harris: May I help the hon. Gentleman, because I know that we are running short of time? I understand the points that he makes about amendments Nos. 5 and 6, and those about amendments Nos. 14 and 15. However, I do not follow why amendment No. 8 or No. 9 should not be acceptable. While he has adequately explained why artificial insemination by donor is not covered in new subsection (5C) or (5D), I really want to know why artificial insemination by husband or donor is covered in new subsections (5A) and (5B), and how that fits with the creation of an embryo.

Mr. Clarke: I am grateful to the hon. Gentleman for raising those points about amendment No. 9. The purpose of the Bill is to extend the provisions allowing birth registration to those few cases where the man has died and his partner subsequently conceives a child. In those cases, the law would have regarded the man as the child's father had he lived. If the amendment were accepted, it would defeat the purpose of the Bill because it would exclude couples who had started infertility treatment by storing sperm abroad. That is the valid point: there are cases in which infertility treatment has started, perhaps abroad, but is carried on after the father is deceased.

Dr. Harris: I am not sure whether that is the same line of argument that the hon. Gentleman used to explain why amendments Nos. 5 and 6 would remove the mirroring of the 1990 Act. He explained the basis for the provision allowing procedures to be undertaken anywhere when one is married and mentioned the relevant presumption. He also explained the extra requirements that are needed when people are not married and donor sperm is involved. However, will he clarify whether the terminology in new subsection (5B), which applies to a UK licence or outside the UK, is the original wording? I also invite the hon. Gentleman to deal again with why artificial insemination by husband or partner is included at all. How does that fit in with meeting the requirement for the creation of an embryo, which the 1990 Act defines as the ex vivo creation of an embryo?

Mr. Clarke: It is the original wording from the 1990 Act, but we cannot deny that different circumstances would prevail and that the father would have died while the treatment was being undertaken. It might help the hon. Gentleman to know that the wording of the four new subsections, (5A), (5B), (5C) and (5D), reflects exactly that in the 1990 Act. However different circumstances will be involved because of the death of one of the parties to the agreement during the treatment.

Dr. Harris: For the fourth time, I invite the hon. Gentleman or someone else to explain why new subsections (5A) and (5B) refer to artificial insemination. I know why new subsections (5C) and (5D) do not. Furthermore, how is that consistent with the requirement that an embryo be created? Under the terms of the 1990 Act, that refers to an act outside the body, whereas artificial insemination will cause an embryo to be created inside the body and is, therefore, inconsistent with the first four words of page 1, line 11.

Mr. Clarke: It might be best for me to write to the hon. Gentleman about his detailed question, although not his question about new subsections (5A) and (5B), and answer in more detail. My understanding is that new subsections (5A), (5B), (5C) and (5D) try to cover all the variations of IVF and infertility treatment that married and unmarried couples could undertake in and outside the UK. If the hon. Gentleman identifies a fault in the original Act, that should, with respect, be dealt with under a wider reform of the 1990 Act. That should not concern us as we try to bring couples in which the father is deceased into line with the rights afforded to children—we are talking about the rights of children—who are born when the father is deceased.

Although I respect the reasoning behind the hon. Gentleman's amendments, they raise matters that relate more to a wider reform of the 1990 Act than to the narrow scope of the Bill. I therefore respectfully ask him not to press them.

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