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In the Mental Capacity Act, we now have provision for an advanced statement of wishes, which, if properly recorded, must be considered when a best-interest decision is taken on a patient. I put “married” in the amendment because I felt that it was a clear, external demonstration of a commitment—one could assume a lifelong commitment—to provide a stable environment in which a couple would have children. Let us take a married couple who want to conceive and are having sex regularly, and it is clear that they are completely committed to each other and to having a child together. Maybe when they are advised to carry on trying, and to try certain times in the month and avoid others and so on, and that is clear to their GP, the man becomes ill and dies. They are fully aware that the woman could conceive and that, within a month, the man could be killed in a road accident. In that event, the advanced statement of wishes could or should be respected. The man could state that it would be deemed to be in his best interests as a person, should he become severely incapacitated, for his sperm to be withdrawn and stored so that the woman—at a future date, when she has recovered from the bereavement—could use his sperm rather than anyone else’s, if she so wishes and decides to go for infertility treatment. That would be lawful.
The man’s sperm might already be held when he dies. According to the Bill, I understand that it would then be lawful to use that sperm, because all the consent forms would have been written. The other situation that could arise is, of course, that the bereaved woman still wishes to have a family on her own. She could go to an infertility clinic and might be accepted
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It is in that spirit that I wanted to explore the matter. That is why I crafted the amendment as I did. I look forward to the Government’s reply. I have had advance notice, which I appreciate, that the noble Baroness, Lady Deech, will oppose the amendment, but I seek clarification. I beg to move.
Baroness Deech: Maybe we can speak plainly about this and scrape away some of the difficulties of a lengthy clause, to which my noble friend Lady Finlay referred. It grieves me to disagree even with her probing, because I so admire her leadership in medical matters.
When sperm is taken from a man before his death, he is able to consent; his mere co-operation with the procedure is consent. There is no more valuable and ethical principle—every point of view on every committee mentioned this afternoon would agree—than consent. That is embedded throughout the Bill. The situation to which the noble Baroness refers is one where the man is dead or on a life-support machine, has not given any written consent, and sperm is to be taken from him completely without his knowledge. The lawyers would have a field day with the amendment, because it refers to marriage; I am sure that there would be a human rights challenge saying that cohabitation and any intimate relationship must have the same rights. How would one know whether people were trying to conceive? We would have the word of only the widow on that.
I hark back to my practical experience. In the period of the Diane Blood case, we got a phone call—no doubt on a Friday afternoon—from parents saying that their son had died in a motorbike accident that afternoon and asking for his sperm to be extracted; there is a window of only a few hours in which that can be done. I replied, “We would all like to be grandparents, but that does not enable us to manipulate the bodies of our nearest and dearest”. One essential element to consent is that we must all have control as far as possible over our reproductive future and our gametes, which are not the same as other tissues. They are quite different because of the family implications.
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The Blood case involved a straightforward assault, and was admitted as such by the judgment of my noble and learned friend Lord Woolf. The Government followed the case with a report by Professor Sheila McLean, with which the Government agreed when her conclusions came forth. Her report and the Court of Appeal judgment said that that must never happen again because it was an absolutely straightforward assault on a dying and then a dead man.
If Parliament wishes to change the law so that dead bodies are to be regarded as a source of valuable gametes, Parliament should do so directly. I suggest that that would be the ultimate degradation and commodification of the bodies involved. Women have
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How would it come about? A man on a life support machine or a dead man would have his sperm removed either by cutting into the scrotum or by electro-ejaculation, which involves the insertion of a baton into the rectum to deliver electric shocks which apparently produces sperm in the bladder from whence it can be removed. I spell that out to the Committee because the nature of the assault on the dead body has to be understood. In such a situation, not only has the man not consented, but he will not even know what is happening. In response to the McLean report and to my noble and learned friend Lord Woolf, the Government accepted that was wrong, although everyone concerned had sympathy with the lawyers.
The fact that a marriage has taken place makes no difference: for example, for centuries it was argued that a husband could rape his wife because in the course of the wedding ceremony she had given her consent for all time to sexual intercourse. That was changed a number of years ago. However, the principle is the same. On marriage one does not yield up all control over sexual matters or reproduction. It is for each one of us to give our consent and to decide whether that should or should not happen. Many men—I understand soldiers going into danger do this—may wish to freeze a sample of their sperm and indicate that it may be used after their death and any piece of writing will suffice.
The situation we are addressing and which I regard as totally unethical is to remove sperm from a dead man. Because of the law of human rights, that would apply equally to a woman’s eggs. If the amendment were passed, it would lead to a human rights challenge, which I am sure would be won. Imagine a young woman dies, say, in a high-speed car crash and maybe her husband, fiancé or boyfriend goes to the hospital and says, “Please remove her eggs and freeze them; I will fertilise them with my sperm; and I will find a surrogate mother to bring the child to birth”. Or imagine, without naming names, that a young woman dies in a high-speed car crash, as does her boyfriend, and the father of one or other goes to the hospital in that very narrow window of time in which the sperm and eggs can be taken and says, “Take the sperm and the eggs; they told me they were going to get married; I know that that is their wish; please freeze them and I will pay a great deal of money for a surrogate mother to carry the baby to term”.
I will not go on because the night is drawing on, but I urge the Committee to consider the integrity of the human body and the need for us to be able to consent or not to our reproductive future. I am afraid that marriage in this context makes no difference; we are all autonomous. I very much hope that the amendment, which has been considered by government bodies in the past, will not be pursued.
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Baroness Royall of Blaisdon: Clause 39 replaces, for the future, the provisions inserted into the 1990 Act by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. These provisions relate to the registration of a man on the birth certificate of a child born using his sperm—or an embryo created using his sperm—after his death. As the noble Baroness, Lady Deech, rightly says, the vital word here is “consent”. Amendment No. 66A tabled by the noble Baroness, Lady Finlay, would allow a married woman to register her deceased husband as the father of her child, where his sperm was used, or an embryo was created with his sperm, without the need for his written consent, if they were married and trying to conceive at the time of his death.
The Bill clearly specifies that written consent is needed from any man, whether married or not, and I feel that this is necessary to avoid any uncertainty about his intentions. Using a man’s sperm or an embryo created from his sperm after his death is a significant step. The Government are of the view that it is important that such a step is taken only with that man’s explicit written consent. That ensures clarity and certainty about his wishes. In addition to removing such clarity, this amendment would introduce a two-tier system of consent in which a married man would not have to provide it but an unmarried man would. The Bill allows for unmarried and married couples to be treated consistently and the amendment would introduce a discrepancy. I invite the noble Baroness to withdraw the amendment.
Baroness Finlay of Llandaff: I would like to explore further the issue of consent. I was talking about an advance statement, which we have already debated under the Mental Capacity Act and which one is now asked, in law, to consider in the making of a “best interest” decision, if one takes a decision which could potentially be viewed as an assault on someone. The noble Baroness, Lady Deech, said that any piece of writing would suffice. Therefore, can the Minister clarify the situation of a couple who are trying to conceive? They have written down and lodged with someone such as their GP a piece of paper saying, “We are trying to conceive but in the event of my potential death, I would want to have sperm extracted from my body and stored so that it can be used in the future”. Would that fall within the law? It is very important for couples, whether married or not, to know the position. If the situation has arisen once it can arise again.
Baroness Royall of Blaisdon: I shall respond fully in writing, but my understanding is that if written consent is given, as in the case of an advance statement, as the noble Baroness, Lady Deech, says, that would be deemed to be consent. It is important that consent is given.
Baroness Finlay of Llandaff: I am most grateful. Perhaps I may sum up. My understanding is that what could be considered to be an advance statement could also be used as evidence of consent to the process. Although the noble Baroness, Lady Deech, has laid out very graphically the process of extracting sperm, I remind the Committee that when someone is dead
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The Lord Bishop of Winchester: I speak as one who agrees entirely, though my agreement does not have the same weight, with what the noble Baroness, Lady Deech, has said and therefore what the Government have said. But I wonder whether the noble Baroness has considered that even if a couple, married or unmarried, were seeking to have a child and even if that had been put in writing, what happens if a man—or indeed a woman but we are talking about a man at the minute—is not simply killed outright in an accident but faced suddenly with grievous terminal illness? That would put us in a very interesting situation in relation to the questions debated in the Committee on Monday about a child’s need for a father. I could conceive—wrong word, forgive me; that was not intentional—I can imagine that a man and his wife might well change their minds radically when facing terminal illness and imminent death. That needs to be taken into account as a further subsidiary element to the very powerful points that the noble Baroness, Lady Deech, has made.
Baroness Finlay of Llandaff: Of course anyone can withdraw consent at any time. That is completely clear. In previous debates there were very strong cases made—with which I concur—for a child’s need for parenting from more than one person but that the parenting does not necessarily have to be from the biological father. In fact, children do well with stable adults in the background, which was part of the reason for wishing to explore it. I fear that I have forgotten the point made and therefore have not replied.
Baroness Royall of Blaisdon: I merely wanted to point out that the noble Baroness referred in her original amendment—with which I think we are all agreed there would be profound difficulties—to married couples. I said that if there was written consent making it possible for the woman to go ahead and use the sperm of the deceased man, it would of course apply to unmarried couples as well. I just wanted to verify that.
Baroness Finlay of Llandaff: I am most grateful for the comments from across the Committee. I hope the clarification may be helpful. I need to go away and think about it. I knew the amendment was imperfect and prefaced my remarks by saying that it was probing. I am grateful to the Committee for the time spent on it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Clause 46 [Embryo transferred after death of civil partner or intended female parent].
Baroness Deech: I was proposing to include a reference to Clause 46 in the forthcoming larger group beginning with Amendment No. 68.
Lord Grocott: Before we begin the next group and just so that noble Lords know precisely what is happening I should say that we have, as may have been noted on the Annunciator, cancelled the last debate today. That is obviously very inconvenient for those who came to take part but I thought it the right thing to do because these proceedings have gone on a tad longer than I had anticipated. The House needs to be told that formally and that is what I am doing. The last debate is postponed until some time in the new year.
Baroness Hollis of Heigham: Does that mean that we are not breaking for dinner?
Lord Grocott: I think the mood of the Committee would be that we should go through now and complete it. There are just two more groups.
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Schedule 6 [Amendments relating to parenthood in cases involving assisted reproduction]:
Baroness Deech moved Amendment No. 68:
The noble Baroness said: I will try not to detain the Committee too long but there are some important issues here. These amendments actually call into play Clause 46, which in a way is in the wrong place. They are about the fundamental purposes of birth registration. We are talking about a birth registration in these clauses, not a record of the legal relationship between the adults. It is the welfare of the child that is paramount in English law, not the formal benefits that might accrue to the parents. Using birth certificates to record the adult relationship is not the way to certify the relationship between two people of the same sex or to secure their obligations to the child. Paragraphs 1 to 9 of Schedule 6 provide for two women—and it would have to include two men as well—to be registered as parents on a birth certificate and for the legitimacy of the offspring.
In an earlier set of amendments your Lordships considered without much favour the notion of marking a birth certificate with the information that the child was conceived by donor gametes. The arguments against that amendment were the invasion of privacy and the interference with parental concerns about when and what to tell a child. The provisions of Schedule 6 regarding the birth certificate suffer from the same problems, which are indeed exacerbated. For without even the slight disguise provided by a symbol, it will be
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The birth registration will be used to gain nationality, too, in circumstances where fraud is all too easy. It could be used where the mother has conceived naturally and wants to exclude the natural father. The birth certificate with two same-sex parents will give insufficient information to help towards identifying antecedents and will give rise to unnecessary anxiety about possible medical problems which could not be resolved. The child might not even know which of, say, two women on the birth certificate is actually physically the mother. It should be recalled that the tendency of this entire Bill and its thrust is towards greater truth in IVF—truth for children about their origin—and this is not the way to do it. I am sure your Lordships favour the assumption of legal responsibility by same-sex parents for their children and there are ways to achieve this in law that do not hinge on the birth certificate record. Nor is the birth certificate the way to formalise a particular link that exists between two parents of the same sex. Perhaps a special domestic cohabitation certificate should be devised instead to fulfil that need rather than the distortion of the birth register for all time.
Clause 46 is the most egregious of the registration provisions. It provides that after the death of a same-sex partner, he or she may be registered as the child’s parent on the birth certificate. The deceased’s partner will never have seen or known the child and has no genetic relationship with the child. Their family may or may not in the circumstances bond with the child. Registration of a deceased partner of a mother is of no value to the child socially but may leave the child with a lifelong sense of fiction to which the state should not be a party. It does not provide for inheritance rights. All it would record where one of two partners is dead is that the two women or men were intimate friends. This may be a comfort but it is of no practical benefit to the child born after the death of one of them. The authenticity of consent in relationships is very hard to prove when death has removed one of the parties. We need to be careful not to trespass on the wishes, or worse still the bodies, of deceased loved ones and there is a danger in Clause 39 if consent is not strictly adhered to.
Overall, the schedule puts the demands of adults ahead of the rights of children to know and benefit from both sides of their genetic make-up. It sits uneasily with the ending of donor anonymity. As recently as this June, John Hutton, Secretary of State for Work and Pensions, called in a paper for the numbers of children with no father on the birth certificate to be reduced. That paper is on the Department for Work and Pensions website.
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Members of the Committee know that not all unions between two adults can be the same, or must be treated the same, for all purposes. UK law still does not recognise, for example, underage, incestuous or polygamous marriages. It is the hallmark of a civilised society to set boundaries around mating and conception to control, for example, abortion laws, the age at which children may consent to sex, marriage and the prohibited degrees. If two parties of the same sex have to take steps other than birth certificate registration to seek legal responsibility for a child, as is the case now, at least that ensures that the welfare principle will be considered by the court.
Articles 7 and 8 of the United Nations Convention on the Rights of the Child provide the,
Those rights are threatened by these provisions. This is not a moral issue: it is about disguising true facts. We know that computer records can be insecure and possibly vulnerable, but the birth certificate is the record for generations to come. The study of ancestry should be remembered; there is a need for truth in these situations.
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