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The chairman of the Joint Committee, Phil Willis, suggested in an interview that autism might be considered “a serious medical condition” in this context. While I would never wish to minimise the significant difficulties that autism presents, it is not a condition for which the production of a tissue-typed child should be the solution. The inclusion of the phrase, “potentially life-threatening”, will prevent such applications and help to ensure that future practice does not stray into creating children to treat other relatively minor illnesses. I urge noble Lords to support Amendment No. 30.

Earl Howe: Perhaps I could briefly intervene as the noble and learned Lord referred to my amendments, which follow in a later grouping. I understand why he did so. The reason I felt it appropriate to try to encapsulate in those amendments a definition of “serious” was the very one alluded to by the noble and learned Lord; that it is a vague term. I was uneasy about leaving it undefined in the Bill. I shall explain later why I framed my amendments in the way that I did.

The reason I am not drawn to the noble and learned Lord’s amendment is that there has to be some flexibility for the HFEA to decide upon each case on its individual merits. That presupposes an element of subjectivity, which is why I do not apologise for the phraseology I have deployed in my amendment. It is deliberate because Parliament should not be too prescriptive in what it tells the HFEA it should do. There could be meritorious cases which do not quite fall into the category of life-threatening. I felt I should just explain to the House why consideration should be given to my amendments when we come to debate them, even though we are not debating them at this precise moment.

Lord Patten: My Lords, to anyone lying in a bed with a doctor leaning over them saying, “You have a life-threatening condition” the meaning is entirely clear. We would all appreciate exactly what that meant. Equally, if some doctor leant over any one of us and said, “You have a potentially life-threatening condition unless you do X or forestall doing Y”, we would all understand that. Yet if a doctor were to say to one, “You have a serious condition”, that could be interpreted in a great number of ways, meaning giving up a bit of that or doing a bit more of the other, with an unclear end to it. The amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, has exact clarity, which he quite rightly says that we in this House should always aim for. We should never—my words, not his—legislate for that which we cannot define. We can clearly define “life-threatening”; we can also with equal clarity define “potentially life-threatening”. However, it is extremely hard to define “serious” in a way that would satisfy all noble Lords.

Lord Winston: My Lords, I am reluctant to detain the House, but as my name has been mentioned perhaps it is appropriate that I just respond briefly to the noble and learned Lord, Lord Lloyd. I spoke on the notion of “serious” as against “life-threatening”, with the

21 Jan 2008 : Column 15

views I expressed largely based on the Orthodox Jewish position. I am an Orthodox Jew, and your Lordships may know that we take a particularly serious view of termination of pregnancy; of abortion. Abortion is only permitted under fairly strict conditions; that is, those that are life-threatening. It is obviously not for me to offer a rabbinical discourse, but I understand that most Orthodox rabbis would regard an abortion appropriate where something is life-threatening and not generally, for example, for social reasons.

The rabbinical view—one that I share—is that “life-threatening” includes things which involve the quality of life in some cases. What troubles me particularly about “life-threatening” is whether we might include conditions where there would be serious mental handicap. In practice, of course, virtually all genetic diseases, with one or two notable exemptions, are serious and life-threatening. Yet there might be a situation in which a serious mental disorder—I cannot think of one; perhaps the noble Lord, Lord Walton, can—might be so regarded. That troubles me a little bit about this amendment. Otherwise I do not see a problem, one way or the other.

I am not sure that the noble Lord, Lord Patten, is quite right about clarity. You cannot have complete clarity. As the noble Earl, Lord Howe, says, this is a matter for decision at the time of the clinical involvement. To some extent, we have to make sure that that is done properly, but also in good faith.

Lord Walton of Detchant: My Lords, my noble and learned friend mentioned my name, too. I have not changed my mind. The saving word in this amendment is “potentially”. It does not indicate that the condition must be life-threatening, but it may be potentially life-threatening. That is sufficient qualification for me to feel able to support this amendment, despite the excellence of the wording of the one tabled by the noble Earl, Lord Howe, to be discussed later.

Lord Alton of Liverpool: My Lords, I, too, raised this in Committee. Bearing in mind what was said earlier, I will certainly not be repetitious. I spoke in the debate last week when the noble Baroness, Lady O’Cathain, moved her amendment to stop tissue-typing in the first place.

The amendment is a very good attempt to try to place something restrictive in the Bill on what, as the Minister, the noble Lord, Lord Darzi, has himself said—he did so in a letter that has been sent to some Members of your Lordships' House today—should only ever be used in some difficult and probably unusual circumstances. This will not be a regular procedure. That is why my noble friend Lord Walton of Detchant, who has particularly applied his mind to this question, is right to tell us that the words would be capable of better interpretation than something more vague.

The noble Lord, Lord Winston, referred to the issue of termination of pregnancy. I remind the House that, in that context, one can cite the example of the use of cleft palates as a ground for abortion up to and even during birth. It has been used. Noble Lords will remember the case of the Reverend Joanna Jepson,

21 Jan 2008 : Column 16

who took a case to the courts. The word “serious” was the justification for permitting that, whereas if the provision had been “life-threatening” or “potentially life-threatening”, I do not believe that that could have occurred. For those reasons, and those that I expressed previously, I strongly support the amendment in the name of my noble and learned friend Lord Lloyd of Berwick.

Lord Jenkin of Roding: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, who moved the amendment, referred to the view that I expressed in Committee, based on the recommendation made by the Joint Committee, having heard evidence from a number of experts. I think that I have changed my mind. Merely to have the word “serious” is not enough. I listened to the debate in Committee and I have listened to what noble Lords have said on both sides and all parts of the House. We need something more.

My difficulty is that, although one is attracted by the simplicity of the amendment proposed by the noble and learned Lord, Lord Lloyd—I also agree that the word “potentially” is a very valuable addition to the circumstance—I also have sympathy with Amendment No. 33A, tabled by my noble friend, which goes on to refer to,

I find it very difficult to choose between the two. We have not heard in full my noble friend’s arguments for his amendment. We have heard a number of speeches that have supported the amendment proposed by the noble and learned Lord.

If I decide not to vote on the amendment proposed by the noble and learned Lord in order to wait to hear the arguments, I feel that we have rather missed the point. I find that a rather difficult decision. They seem to stand as alternatives; they cannot stand together. I suppose that we could reach the position where there was uncertainty as a result of decisions on Report. That may give us sufficient grounds to have a clarifying amendment on Third Reading. I know that the House authorities are very restrictive on what one may table on Third Reading, but that seems possible.

I say this with some diffidence, without having heard my noble friend's argument in full, but I am very tempted to vote for the noble and learned Lord’s amendment because it is an improvement on what is in the Bill. As the noble Lord, Lord Alton, said it includes the important word “potentially” before the words “life-threatening”, and it meets many of the points made to the Joint Committee, to which I referred in Committee debates. On balance, for the moment, although I will listen to the arguments made in the rest of the debate, I feel inclined to support the noble and learned Lord.

Lord Harries of Pentregarth: My Lords, I share some of the confusion about process expressed by the noble Lord, Lord Jenkin. I should like to hear what the procedure will be if the amendment in the name of the noble and learned Lord is passed. Does that mean that the amendment in the name of the noble Earl will fall? What happens if both are passed?



21 Jan 2008 : Column 17

3.30 pm

Lord Mackay of Clashfern: My Lords, it is worth pointing out that the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, does not delete “serious”; it only adds “and potentially life-threatening”. In view of his explanation, I doubt whether there is anything potentially life-threatening that is not also serious. Anyway, he has not taken out “serious” and the result is that amendment of the noble Earl, Lord Howe, which explains the meaning of “serious”, can be adhered to by the House. If the amendment of the noble and learned Lord, Lord Lloyd, is passed, it does not rule out the amendment of noble Earl, Lord Howe, when it is voted on.

Lord Turnberg: My Lords, I can understand why the noble and learned Lord, Lord Lloyd of Berwick, has introduced the amendment. However, is it possible to think of conditions that are serious, but not life-threatening, which one would want people to carry on with? There are conditions that are serious but are not necessarily life-threatening. If a child has a cleft palate, very few people would regard that as sufficiently serious or life-threatening; it is possible to have that as part of a syndrome in which the child is badly deformed, deaf and has all sorts of associated anomalies, yet that serious condition is not normally life-threatening. I am not sure the amendment is quite right.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble and learned Lord, Lord Mackay, for explaining in procedural terms the implications of the amendment. He is correct to say that, should the amendment be passed, we would move forward, discuss, debate and possibly vote on the amendment tabled by the noble Earl because “serious” is retained.

Testing for the purpose of determining tissue type can be done only when the sibling suffered from a serious medical condition that could be treated with umbilical cord blood stem cells, bone marrow or other tissue of any resulting child. A government amendment to be discussed shortly will limit that to exclude whole organs. This amendment introduces “and potentially life-threatening” after “serious” and would mean that embryo testing could be carried out only if the serious condition that the sibling suffered from was also potentially life-threatening. Therefore, this amendment introduces a higher test, as noble Lords have acknowledged. That higher test would mean that the HFEA would not be able to license treatment of a condition that had a significant impact on the life of the sufferer and which was serious but not necessarily potentially life-threatening. It is expected that most conditions for which tissue typing would be licensed for would be life-threatening, very serious conditions—and all the handful of cases licensed for that purpose to date are so.

These decisions are not entered into lightly, either by the parent or by the regulatory authority. The licensing decisions made have involved very serious blood conditions and have been undertaken as a last resort. The HFEA has licensed tissue typing for three conditions: aplastic anaemia, Diamond Blackfan anaemia and beta thalassemia. These conditions can be treated with the use of bone marrow or cord blood from an appropriate donor. In most cases this would be either

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from a family member or a matched donor on the worldwide bone marrow register. However, where there is no match either in the family or on the whole register, as a last resort it is possible to test sibling embryos to see whether they would have a matched tissue type.

I note the important points made by the noble and learned Lord, Lord Lloyd of Berwick, and others. As many have acknowledged, we originally proposed, when the Bill was published in draft, to restrict these decisions explicitly to life-threatening cases. That draft Bill was amended following scrutiny by a Joint Committee. One change made to the Bill on the recommendation of the committee was that the wording in relation to tissue typing should be amended so that the term “life-threatening” was replaced by “serious”. We have heard views today and in Committee that it would be more appropriate if this were limited to life-threatening or potentially life-threatening conditions, and we acknowledge those views. As I promised in Committee, I have reflected on this and discussed it with both colleagues and officials, but I am of the view that by retaining the word “serious”, we will allow for any such conditions that in the future could be identified as potentially treatable by cells from a tissue match donor.

In addition, by retaining “serious”, we will ensure that the legislation is as future-proof as possible. The HFEA will consider every condition for which tissue typing is proposed and will provide guidance on this in its code of practice. Taking these factors into account, and to ensure that the Bill is as future proof as possible, we intend to keep the wording as it is in the Bill, and I invite the noble and learned Lord to withdraw his amendment.

The Lord Bishop of Winchester: My Lords, would the noble Baroness like to provide us with a definition of the term “future proof”?

Baroness Royall of Blaisdon: My Lords, as the noble Earl pointed out earlier in his intervention, we believe that there should be some flexibility for the HFEA to decide. Further, there may be some conditions of which we are not aware at the moment, although science is moving on apace. That is how I define “future proof”.

Lord Lloyd of Berwick: My Lords, I am grateful to the Minister for her reply to this amendment, but regret that I am not satisfied with the argument that the word “serious” on its own, without the addition of some reference to a threat to life, is adequate. In my view it is still much too broad.

As regards the amendment of the noble Earl, Lord Howe, while I understand entirely his desire to include quality of life, I have to say that he has not yet persuaded me—he might do so—that it is sufficiently precise to be put in an Act of Parliament. And in response to those who have a problem about which amendment to support, I suggest that, not for the first time, the noble and learned Lord, Lord Mackay, has produced the solution. Strictly speaking, if this amendment is passed it will be possible for the noble Earl, Lord Howe, to move his amendment because the word “serious” would still remain in the definition. It may require some tidying up, but that could be done on Third Reading.



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Given that, I believe that there is sufficient support for the amendment for me to test the opinion of the House.

3.37 pm

On Question, Whether the said amendment (No. 30) shall be agreed to?

Their Lordships divided: Contents, 121; Not-Contents, 162.


Division No. 1


CONTENTS

Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Blaker, L.
Bledisloe, V. [Teller]
Boothroyd, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Butler-Sloss, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Chester, Bp.
Chorley, L.
Clarke of Hampstead, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Crickhowell, L.
Crisp, L.
De Mauley, L.
Deech, B.
Denham, L.
Dixon-Smith, L.
D'Souza, B.
Eccles, V.
Elliott of Morpeth, L.
Elton, L.
Exeter, Bp.
Falkender, B.
Falkland, V.
Fearn, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Goodlad, L.
Hanham, B.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Howarth of Breckland, B.
Howe, E. [Teller]
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hylton, L.
Jenkin of Roding, L.
Kalms, L.
Krebs, L.
Lane of Horsell, L.
Listowel, E.
Liverpool, Bp.
Lloyd of Berwick, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Manchester, Bp.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Molyneaux of Killead, L.
Monson, L.
Montgomery of Alamein, V.
Moran, L.
Moser, L.
Neill of Bladen, L.
Northbourne, L.
Norwich, Bp.
O'Cathain, B.
O'Neill of Bengarve, B.
Palmer, L.
Patten, L.
Pendry, L.
Perry of Southwark, B.
Platt of Writtle, B.
Quinton, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rowe-Beddoe, L.
St. Albans, Bp.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selsdon, L.
Sharples, B.
Shrewsbury, E.
Skelmersdale, L.
Slim, V.
Slynn of Hadley, L.
Soulsby of Swaffham Prior, L.
Steinberg, L.
Stern, B.
Stoddart of Swindon, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tebbit, L.
Tenby, V.
Thomas of Gresford, L.
Trimble, L.
Trumpington, B.
Waddington, L.
Wakeham, L.
Walpole, L.
Walton of Detchant, L.


21 Jan 2008 : Column 20

Warnock, B.
Warsi, B.
Williams of Crosby, B.
Winchester, Bp.
Windlesham, L.
York, Abp.

NOT CONTENTS

Acton, L.
Addington, L.
Adebowale, L.
Adonis, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackwell, L.
Blood, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bowness, L.
Bradshaw, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carey of Clifton, L.
Chidgey, L.
Christopher, L.
Clark of Windermere, L.
Clement-Jones, L.
Cohen of Pimlico, B.
Condon, L.
Corston, B.
Coussins, B.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dubs, L.
Dykes, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Flather, B.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Garden of Frognal, B.
Gavron, L.
Giddens, L.
Golding, B.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hamwee, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harris of Richmond, B.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Laming, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
Maddock, B.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Murphy, B.
Neuberger, B.
Newby, L.
Norton of Louth, L.
Onslow, E.
Ouseley, L.
Parekh, L.
Patel, L.
Pitkeathley, B.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Rix, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Selborne, E.
Sharp of Guildford, B.
Shutt of Greetland, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.


21 Jan 2008 : Column 21

Teverson, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Vadera, B.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.49 pm

Baroness Royall of Blaisdon moved Amendment No. 31:


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