Dr.
Harris: I have six brief issues to raise. I apologise to
the Committee for having read the schedule, which is where I went
wrong. I was hoping that the Committee could get away
earlier. My
first question relates to the provisions on page 60 of the Bill, which
amend paragraph 2 of schedule 3 to the 1990 Act. I was hoping that the
Minister would explain the purpose of that measure and, in particular,
whether it conflicts with a later paragraph—paragraph 6(4) of
schedule 3 to the Bill, which is also on page 60 of the Bill and which
introduces new sub-paragraph (3) to existing paragraph 4 of the 1990
Act. It
states: “Where
the terms of any consent to the use of an embryo...include consent
to the use of an embryo or human admixed embryo whose creation may be
brought about in vitro using embryo A, that consent to the use
of that subsequent embryo or human admixed embryo cannot be varied or
withdrawn once embryo A has been used for one or more of the purposes
mentioned in sub-paragraph (2)(a) or
(b).” Sub-paragraphs
(2)(a) and (b) relate to treatment services and projected
research.
Substituted
sub-paragraph (5) on page 60 of the Bill
states: “In
the case of a consent falling within sub-paragraph (4)(b), the terms of
the consent may be varied, or the consent may be withdrawn, in
accordance with this Schedule either generally or in relation
to— (a)
a particular embryo or particular embryos,
or (b)
a particular human admixed embryo or particular human admixed
embryos.” I
just want reassurance. I do not have significant doubts that the Bill
as amended is correct and that the Act will be correct, but it is not
obvious—nor was I able to find it in the explanatory
notes—why it seems that people can pick and choose their consent
and withdraw consents around embryos, whereas elsewhere it says that
they cannot withdraw once the process has been
started. I
can understand why people do not want the expense of a research project
doing something and consent being retrospectively withdrawn in the
middle of the project. It just seems to me that there may be some
inconsistency. I hope that I have explained
that.
Mark
Simmonds: Has the hon. Gentleman noticed in the
explanatory notes the phrase “chain of consent”, which
relates to paragraph 14 of schedule 3 to the Bill? It may go some way
to shining light on the area he is
discussing.
Dr.
Harris: I am grateful to the hon. Gentleman for suggesting
that this issue is more complex even than
that. That may be the solution or it may be an extra complexity. I am
sure that some reading will have to be
done. My
next point relates to the concern around proposed new sub-paragraph
(5), which is inserted by paragraph 6 of schedule 3 to the
Bill. It can be found at the top of page 61, in line 5. The distinction
is between the way that this is dealt with for embryos and the way it
is handled for human admixed embryos. Paragraph 4(2) of schedule 3 as
it will be amended
states: “Subject
to sub-paragraph (3), the terms of any consent to the use of an
embryo” —that
is, not human admixed
embryo— “cannot
be varied, and such consent cannot be withdrawn, once the embryo has
been
used— (a)
in providing treatment
services”, which
clearly does not apply to human admixed embryos, which is why it is a
different construction in sub-paragraph (5) of the measure
as it will be amended,
or “(aa)
in training persons in embryo biopsy, embryo storage or other
embryological techniques”,
which is the
problem. 2.15
pm Dr.
Ian Gibson (Norwich, North) (Lab): Could the hon.
Gentleman take it more slowly, please? It is impossible to follow, and
we are trying hard to do our
job.
Dr.
Harris: I will try to oblige. I would like to refer to
paragraph 6 of schedule 3, in particular to draw attention to the
impact of sub-paragraph (3) in amending paragraph 4(2) of the schedule
to the Act, because the schedule to the Bill amends the schedule to the
Act. I would like to contrast that with what paragraph 6(5) of
schedule 3 to the Bill does to the same paragraph—that is,
paragraph 4 of the schedule to the Act—when it
inserts sub-paragraph (5). This can be found near the top of page 61 of
the Bill. It deals with human admixed embryos.
My point was
that paragraph 4(2) of the schedule to the Act, as amended, would say
that
“the terms of
any consent to the use of any embryo, that is, not human admixed embryo
(“embryo
A”)” —that
is, not “human admixed
embryo”— “cannot
be varied, and such consent cannot be withdrawn, once the embryo has
been
used— (a)
in providing treatment
services”. That,
rightly, does not appear for the human admixed embryos in paragraph 5,
because there is no question of human admixed embryos being used for
treatment
services, “(aa)
In training persons in embryo biopsy, embryo storage or other
embryological
techniques,” which
is not covered in sub-paragraph (5) and which I am suggesting could
usefully be done,
and “(b)
for the purposes of any project of
research.” Paragraph
5(4), which is shorter, now
states: “Where
the terms of any consent to the use of a human admixed embryo
(“human admixed embryo A”) include consent to the use of
a human admixed embryo or embryo whose creation may be brought about
in vitro using human admixed embryo A, that consent to the use
of that subsequent human admixed embryo or embryo cannot be varied or
withdrawn once human admixed embryo A has been used for the purposes of
any project of research.”
I may be wrong, because
that deals with a chain of embryos and “any embryo” may
cover “human admixed embryo”, but what concerns me is
that there does not seem to be provision for human admixed embryos to
be used for training people in the handling of blastocysts, if it is
possible to create a blastocyst, and in things to do with embryological
storage. One of the reasons for introducing human admixed embryos is a
shortage of eggs, and it may well be that there is no better use of a
human admixed embryo than for training, since it preserves the use of
eggs and precious embryos, which should be used in treatment services,
for those purposes.
However, I
feel that there may be something missing, which relates to the third
point I want to make. I may be wrong—I usually am, when it comes
to questioning Government amendments to complex pieces of
legislation—but amendment No. 66, which I will not be speaking
to, does not seem fully to amend the schedule. The Committee will
notice that amendment No. 66 inserts “(ba)” into line 12
on page 62 of schedule 3, but it does not amend line 8, and line 8
would appear to have an amendable part—that is, the insertion of
“(ba)” into line 8. The effect of not amending paragraph
6 in schedule 3 to the Act as amended is that:
“A
person’s gametes or human cells must not be used to bring about
the creation of any embryo in vitro unless there is an effective
consent by that person to any embryo, the creation of which may be
brought about with the use of those gametes or human cells, being used
for one or more of the purposes mentioned in paragraph 2(1)(a), (b) and
(c)”. That
does not include testing. However, the Government are seeking to amend
the Act with the amendment to schedule 3:
“An
embryo the creation of which was brought about in vitro must not be
received by any person unless there is an effective consent by each
relevant person in relation to the embryo to the use of one or more of
the purposes mentioned in paragraph 2(1)(a),
(b)” —it
is now (ba)—“and (c)”.
Perhaps for training
purposes it is a matter of receipt rather than use, but I am not
certain of that. I would be grateful if the Minister could clarify
whether that is an omission.
My fourth
point is to ask the Minister whether she can explain what is meant by
paragraph 10 of schedule 3 on page 62. It is about the use of embryos
obtained by lavage. The explanatory notes specify that its purpose is
to prevent embryos taken from a woman being used in research, but
perhaps the Minister could explain why it was felt necessary to have it
in the Bill now. Was there a gap? What was the impact of that gap? What
could have happened had the provision not been introduced? It was
mentioned briefly in the other place, but on reading it in
Hansard, it was not entirely clear what it meant.
My fifth
point is one that I raised incorrectly in consideration of the
amendments, and the Minister did not address it in her comments. On
page 64, paragraph 10(3)(b), there is a provision to ensure that
consent is not required for storage. It states that the position meant
is one
where “the
patient is likely to regain that
capacity”. My
point was whether “likely” is the right test given that
it suggests a greater than 50 per cent. chance, two thirds of a chance,
that capacity will be restored. Sometimes it is impossible to say
whether it will be restored; in some circumstances it is possible but
unlikely. Where is
that dividing line to be drawn? It would be helpful if the Minister
could give some indication, now or at a later stage, about what she
means. My
final point is to draw an issue to the attention of the Minister. This
is for information only—I do not expect her to respond. On page
65, proposed new paragraph 13(1) at line 16, the discussion about human
admixed embryos describes them as being used for the purposes of
“any project of research”, and it is the same in line 21.
That provides a mismatch, which we discussed earlier with respect to
the earlier part of the schedule in the first group of
amendments.
A similar
problem arises in schedule 2 about the issue of testing on human
admixed embryos. I do not believe that schedule 2 has been amended to
provide for the use of human admixed embryos in the testing of embryos.
Obviously, I cannot talk about schedule 2 now as it was considered in
Committee on the Floor of the House, but I draw attention to the fact
that if the Government are right, they are right in both places and if
there is a problem, it may apply in both
places.
Mark
Simmonds: I am sure that hon. Members who thought that
they understood how consents were going to work are now completely
confused, as indeed am I. I wish to make three succinct
points, the first of which is about written consent that will be
rightly retained and also the consent that must be signed under the
Bill. Can the Minister say whether there is evidence that written, but
unsigned, consent—as under the 1990 Act—has led to
misuse, or inappropriate use or storage of gametes and embryos? My
second point relates to paragraph 4(3) of the 1990 Act and
the withdrawing of consent. I see no mention in the Bill of those who
are physically incapacitated who wish to withdraw and direct another to
sign on their behalf. If I have interpreted the Bill correctly, such
people can do so in respect of consent, but not for withdrawal. Why is
that the
case? My
third point follows that made by the hon. Member for Oxford, West and
Abingdon. It would be helpful if the Minister could clarify the
specific nature of consents under paragraph 8. Are separate consents
required for the storage of gametes and for the embryo created by the
gametes, as they are for admixed embryos? Such matters might be
explained by the phrase “the chain of consent” that is
used in the explanatory notes, which—to be fair—is why
the hon. Gentleman could not find it. The reference to that is in
paragraph 89 of the explanatory
notes.
Dawn
Primarolo: I had no idea that the hon. Member for Oxford,
West and Abingdon aspired to be a parliamentary draftsman. If that is
the career he is heading towards, he has demonstrated his ability well
this afternoon, although one of the enormous skills of parliamentary
counsel is—thank goodness—to listen carefully and have
specific instructions about intent and what is expected under the law,
and make sure that it is covered. As the hon. Gentleman progressed
through his questions, he answered
them. The
hon. Gentleman said that the schedule is about enabling a person to
give either general consent about how an embryo may be used or specific
consent in
relation to a particular embryo. Consent can therefore be specific. The
provision needs to reflect all of that and show that, having given
general consent, a person can vary it or withdraw any of their
consents. However, that is limited by paragraph 4 under which consent
cannot be withdrawn when an embryo has been used and has progressed a
long way into a research project. All the references that the hon.
Gentleman made to the schedule picked up each one of those interactions
and reinforced them. That is the only way in which to handle matters
and I am sure that the parliamentary draftsmen will be fascinated to
read how closely he has followed the accuracy of their drafting. Many
people with fantastic qualifications, along with the hon. Gentleman and
his considerable skills, have examined the Bill to see that that is
what it will
deliver. The
hon. Gentleman thought that a reference was missing in respect of
training. He is not right. If he passes his mind back to our earlier
debate, embryos cannot be created for the purpose of training. The
reference is not missing because such action cannot take place. The
Government do not intend embryos to be created for training alone; they
can be used for training and that is covered under paragraph 6(3).
There is no omission there either. Of course, training is part of a
treatment licence. It is not possible for a licence to be granted for
training in connection with human admixed embryos under schedule 2.
That is reflected in schedule 3, which is why there is no
consent provision; it cannot be done in the first
place. 2.30
pm The
hon. Gentleman returned to a point that we debated concerning amendment
(b) to Government amendment No. 102, which specifically touched on a
research project. I have already told him that I would consider that
point.
The hon.
Member for Boston and
Skegness—
Dr.
Harris: I am sorry, but I think that there has been a
misreading. I do not think that amendment (b) to Government amendment
No. 102 has anything to do with the issues that I raised about the
limitations on research and the threshold that research must reach. I
think that the Minister might be referring to another amendment,
although I do not think that it was amendment
(b). Is
it the Minister’s understanding that it will not be possible for
human admixed embryos to be used in a research project for
training—they can obviously be used only for research—or
does she consider that training is an integral part of research and
that there will therefore not be a problem training new researchers in
how to manipulate human admixed embryos? It that was the case, it might
be helpful if she would specify
that.
| 
