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Without going into all the reasons, I agree with the Government’s legal advice that Article 8 of the European Convention, which protects the right to private life, read with Article 14, which means that that right must be enjoyed without direct or indirect discrimination, would give rise to a powerful case, although I would be more optimistic on the part of the claimant were it before our supreme judicial authority, the House of Lords, than I would before the European Court of Human Rights. This is because it is an international court dealing with a wide range of 47 countries and tends to give a wide margin of discretion to the national authorities. Our judges, being close to the social conditions and ethical values of our country, and showing themselves to be aware of the need to secure equal treatment without discrimination, would be much more likely to grant a declaration of incompatibility if the Bill were to stand as it is without Amendment No. 108. If one replaced it with Amendment No. 108A, there would be a serious risk of litigation leading to that result.

The great advantage of the reference to “supportive parenting” is that it does not prejudge or seek to impose a standardised view of what the family ought properly to be. I also have experience, but of a slightly different kind from that of my noble friend Lord Carlile, of lesbians, in particular, being model and rather traditional parents. That simply illustrates that you cannot generalise. I know many terrible families, with terrible parents who are a father and a mother; and I know some extremely good parents who are same-sex couples. We must guard against the danger—I say this in the presence of the noble Baroness, Lady Thatcher—of a kind of Clause 28 being an indirect result of the legislation.

Baroness Howarth of Breckland: My Lords, I support the government amendment. In doing so, I wish to address three issues.

The first issue concerns the way in which the debate has been turned into a discussion about the value or non-value of fathers. We should all remember that fathers are intrinsically valuable. I said in a previous debate that I had a marvellous father. Difficult as he was, I would not have given him up for anything else. But to say that we are looking for every family to have a father denies the reality of our society as it stands today.



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I was rather concerned by some of the comments made, where I thought the noble Baroness, Lady Deech, linked cloning with same-sex families in terms of not having fathers. It suggests to me that the hundreds of non-conventional families out in our communities—and there are many kinds—are not respected. We demand respect of those families if we are going to support them and give them a good life.

Secondly, I wish to consider the issue from the point of view of the child. The noble Baroness, Lady O’Cathain, mentioned that for too long children had been seen as the end rather than the means. For too long, issues about fertilisation have been about childless couples rather than about the children. We know that children do best when they feel secure, understand about their background and have no sudden traumas. Growing up in any family that gives them that kind of background will be helpful.

There was debate earlier about research. The most scientifically rigorous studies of the development of children in same-sex families show that children raised in lesbian mother families are no more at risk of developing psychological problems than their counterparts from families with fathers present in their home. As I said earlier, a stable and loving home environment is the most important thing that children need. The evidence compiled by CARE and laid in the Library—I am a Christian—has been called to account by some of the country’s most eminent experts in the area of fathering and parenting. They have seriously questioned the credibility of The Fatherhood Bibliography.

These are no mean experts: they include Professor Michael Lamb from the Department of Social and Developmental Psychology at the University of Cambridge, and the director of the Centre for Family Research, Professor Susan Golombok. She advised the Rowntree Foundation on parenting and families, is an adviser to the Department of Health and undertakes research at Cambridge. Together with Fiona McCullen, she has followed 25 lesbian mother families from 2004 and 38 families headed by a single heterosexual mother. The quality of parenting in these families shows very little difference. They concluded that the presence or absence of fathers in a home from the outset does have some influence—this is true in single-parent families as well as other families—but has little consequence in later life.

The reason I quote this research is not for self-indulgence but simply to point out that there is an alternative view to the one presented previously, which was deeply hurtful to at least 10 per cent of the outside population who saw this as a slight on their capacity to parent. I wish I had been able to make a speech as moving as the one of the noble Lord, Lord Carlile, in which he described people whom I know who have brought up children. I was speaking recently to two doctors, both working as paediatricians, who had been together for the past 15 years and have a seven year-old boy. They were deeply offended by the suggestion that their parenting was not as good as that of heterosexual couples.

Let me turn now to parenthood and the question of fathers who walk away. Do not sperm donors walk away? Sometimes we want them to walk away, but we

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want to know who they are. We will come later in the Bill to the issue of children knowing their genesis. It is an important point because if female couples have sperm donated “on the side”, in the ways described by the noble Lord, Lord Carlile, they will have very little opportunity to know who that person was; they will not know about the quality of the sperm or the health of the person donating it.

I want to concentrate on what the Bill is about, not this wider debate. Of course fatherhood is vital and many of us had fathers whom we loved dearly. I said that to a colleague recently, who said to me, “But I didn’t”. We have to remember that not all men are good, which is another issue. I spend a great deal of my time dealing with the civil courts, as did the noble and learned Baroness, Lady Butler-Sloss, and I know that the McKenzie magazine often depicts situations not quite as they might be. I am very fond of the McKenzie people for working for fathers. We are talking about a very small number of couples—significant but small. They are not going to undermine fatherhood in this country. What they are going to do is give children a good home and a stable and loving family, at least equal to their heterosexual counterparts. I am not saying they are more perfect but neither are they less perfect. They are like the rest of the community. They are, as the noble Lord, Lord Carlile, said, extraordinarily ordinary people who happen to want to raise a child healthily and properly through the system. I hope that noble Lords will support the Government’s amendment and give those women the chance they want.

7 pm

The Lord Bishop of St Albans: My Lords, this legislation is based on the promotion of equality and on a concept of non-discrimination. I wish we could rescue the word “discrimination”. Its current use seems to imply the exercise of prejudice against other people based on stereotyping, which of course is appalling. I want to reinstitute “discrimination” as meaning coming to a careful and fine judgment based on the use of reason and through reflection on experience.

It goes without saying that I, in common with other Members of your Lordships’ House, recognise the abilities and commitment of many single parents. I do so from my own personal perspective. When my mother died as a result of very serious medical negligence, my father brought me up alone for a couple of years before he happily remarried, and he was quite outstanding. It also goes without saying that I recognise entirely the abilities and commitment of many single-sex couples, as spoken about so eloquently and with such passion, compassion and truthfulness as the noble Lord, Lord Carlile, brought to our debate. But it does not logically follow that a phrase about including the need of that child for a father is discriminatory. It is a statement in our legislative processes about the general recognition that in an ideal world, most children need good fathers and good mothers.

What does the omission signal? I travel quite often by public transport. Like the rest of your Lordships’, I am bombarded with announcements. A man with a megaphone tells me that I am to keep my belongings with me at all times and that I must not smoke. I

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wonder what would happen if an announcement came across every station in London which said, “In the interests of equality, people are reminded that children do not necessarily need fathers”. In other words, the omission is obviously going to be significant in what it signals to our society about the need for fathers. We can do that without in any sense being discriminatory and exercising prejudice based on stereotypes. That would be absolutely appalling.

I support the noble Baroness, Lady Deech, in what I thought was a very telling remark. She pointed out that the public support for research and treatment is based on certain moral principles which are implicit but from time to time need to be explicit. Those moral principles include our understanding of what family life generally but not exclusively best includes. That is why I wish to support the amendment standing in the name of the noble Baroness, Lady Deech.

Lord Winston: My Lords—

Lord Warner: My Lords, I do not think we have heard from the Labour Benches. I am prepared to give way to my noble friend Lord Winston. We are now presented on Report with a veritable banquet of options in terms of amendments to the 1990 Act for safeguarding the welfare of children to be born as a result of IVF. It is worth bearing in mind that none of these amendments changes the idea that the welfare of the child is a significant factor in whether to proceed to IVF treatment. That is still an integral part of this Bill. We are arguing about the extent to which we nuance the term “welfare of children”. We have heard some very powerful speeches. I found the speech by the noble Lord, Lord Carlile, particularly moving.

Before settling down to the exam paper, let me first congratulate the Government on listening to the concern that I and others expressed in Committee about the proposed amendments to the 1990 Act for a father. I am particularly pleased that they have moved away from what I can only describe as the positively Guardian-esque wording for a social network which they were toying with. I congratulate the Minister on his success in moving away from that wording.

I have listened to the arguments and for the reasons I gave at Second Reading I still prefer Amendment No. 109, which leaves matters as they were in the 1990 Act. I shall not detain your Lordships by going through all those reasons again. I have not heard an overwhelmingly telling set of arguments for changing the wording. I have heard some arguments and those who put forward those arguments clearly felt passionate about them. I listened very carefully to what the Minister said about possible challenges under the Human Rights Act. He did not say that the Government’s advice was that there would be challenges; he said, “There may be challenges”. There may be challenges under a lot of legislation. Some of us who have signed quite a lot of certificates on Bills coming to this House recognise that this is not a 100 per cent foolproof certificate. We are giving our opinion, based on the evidence and legal advice presented, that the Bill conforms to the requirements of that Act, but there is no 100 per cent guarantee that there will not be challenges. I

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would like to see the legal advice which says. “There will be challenges. We are not confident that if you kept to the 1990 Act those challenges would be successful”. However, I am a realist and I recognise—and some of us have been here before—that the Government will want to have their way, particularly after they have moved a good way to respond to some of the concerns expressed.

I am not holding my breath about whether we will get through Amendment No. 109 so I have scanned the other amendments to see which take my fancy. The most effective alternative was that tabled by the noble and learned Baroness, Lady Butler-Sloss, which is Amendment No. 110. I always defer to the noble Lord, Lord Lester, on the European Convention on Human Rights—although it seems but yesterday, it was 10 years ago that I was writing policy papers on this for the Labour Party—but the main thing is that it balances rights and some rights are in conflict with each other. It does not give absolute rights to one person over another, but balances them. I would say—and I am not a lawyer, but I would like to hear the arguments against this—that Amendment No. 110 achieves that kind of balance. It is difficult for me to see, on the evidence so far, that that amendment in particular does not do a rather good job, and indeed does not in some ways improve the wording in the 1990 Act. I thought the noble and learned Baroness, Lady Butler-Sloss, made a powerful speech on that.

There are some options for the Government. I ask my noble friend to pay serious attention to some of these issues, as I am sure he will. I do not want him to think I am churlish in not rushing to accept the Government’s amendment—which, after all, is better than where we were before. At the very least, I ask that wording like that in Amendment No. 110 is reflected in the code of practice. The reason I say that is that the distinguishing feature of that amendment is that it provides a clear and elegant test that clinicians have to pay attention to in deciding on the welfare of the child. It has clarity about what clinicians have to consider in terms of the welfare of the child at the point of determining whether they go ahead with IVF. That is the great attraction of Amendment No. 110. I ask my noble friend at the very least to give us some assurances that that is the kind of clarity we would look for in the code of practice. However, if he really wanted to satisfy me, I would ask him to take away Amendment No. 110 and consider it further for Third Reading.

Baroness Williams of Crosby: My Lords, my name is also associated with Amendment No. 110 and I strongly support what the noble Lord, Lord Warner, has just said. We have listened to a number of instances of how there might be incompatibility with the European Convention on Human Rights. Given that in certain other European countries there is no permission for people to get IVF unless they appear as a married couple in the first instance, I admit I find it puzzling that we should be accused of discrimination. I am pleased to be associated with the noble and learned Baroness, Lady Butler-Sloss, on Amendment No. 110. I would have thought that its wording would have met virtually any test of discrimination that one could come up with.



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I was moved, as many other noble Lords have been, by the speech of my noble friend Lord Carlile. For the purposes of making my own position quite clear, I should say that I always supported the Civil Partnerships Act. I was strongly in its favour and members of my own family have very much benefited from it. Civil partnerships are not the issue at all; the central issue is whether the welfare of the child comes before that of either parent or both parents, whether they are in a heterosexual or a gay relationship. I remain unsatisfied on that point.

My noble friend Lord Carlile said—and this was the one thing in his brave speech that I was slightly surprised by—that he believed the structure of what one might call traditional heterosexual marriage has more or less disappeared. There is one reason why I would raise a substantial question about that: the clear evidence, most recently emerging from the OECD study and others, of the growing involvement of young men in parenthood. Many of us remember, if we go back a generation or two, that fathers were a very distant member of the family, sometimes not much more than authority, sometimes even an authority that abused itself by its behaviour towards its spouse and its children. That has changed quite radically in my lifetime. I now constantly come across fathers who are sharing in all the basic issues of bringing up a child, from changing nappies to pushing prams to taking a huge share in their child’s upbringing. It has been a striking transformation. Many young men today share far more than their fathers or grandfathers ever did, not only in housework but in raising children and in all domestic responsibilities.

For me, that is the way forward. That is what I always thought equality between men and women was all about: the equality of sharing responsibilities as much as equality before the law. I would therefore be very sad if we began to diminish the importance of fatherhood. Here I agree with the noble Baroness, Lady O’Cathain; that is the message that would go out if we effectively said that a child does not need both a mother and a father, as Amendment No. 110 suggests. Why do I say that? Whether we like it or not, our society is made up of two genders: male and female. It is important that children should be brought up knowing something about the approaches and attitudes of those two genders. They are not the same, and thank God they are not. Women bring to society a set of different attitudes and often different objectives from those of men, and children need to try to understand them both.

7.15 pm

When I was Education Secretary, one of our main concerns was the shortage of male teachers in primary schools—a concern that remains. Why did we think that was so important? It was of no concern to us whether the young man was gay or heterosexual; what mattered was that he was a devoted and good teacher. We knew that those children needed male role models; in particular, children from broken or disadvantaged families benefited from a male role model. It did not necessarily have to be a father, but it was important that within the family structure there

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was someone who was, in a sense, in the role of a father and therefore gave that model to both male and female children.

I would go further than that, however, and say that in our society the way ahead is clearly the sharing of responsibility. That is now extremely important if we are to sustain the concept of family life, whether—I repeat this, although I do not need to—in civil partnerships or in marriages of the more traditional kind. What matters is that the family reflects the contribution of both its male and its female members, and that both should recognise their responsibility to society as a whole.

I was troubled, therefore, by the extent to which I have seen, particularly in education, the way in which boys in particular find themselves at a loss about quite what their role in society is. We know already that boys now attain less than they used to. They attain less, comparatively, than girls do at academic levels from the very beginning of primary school all the way through to A-levels and beyond. We are seeing the demotivation of boys. It is terribly important that we restore to them their motivation, and fatherhood is one of the key ways of doing that. I thought that much of the Government’s legislation indicated that they shared that view, since they have never ceased to iterate the importance of the responsibility of fathers, as well as mothers, towards the children they generate.

I strongly support Amendment No. 110. It is fair and even-handed, and gives the best possible chances to children for their welfare to be considered. I repeat: in every event the welfare of the child must come first. It is the very highest priority.

Lord Winston: My Lords—

Lord Alli: My Lords—

Lord Winston: Sorry, my Lords; I have given way once already. I speak from a rather unique position. In moving the amendment, the noble Baroness, Lady Deech, spoke with the experience of being chairman of the Human Fertilisation and Embryology Authority. The noble and learned Baroness, Lady Butler-Sloss, spoke from her experience on the Bench. I first specialised in infertility care some 35 years ago. My chair, when it was eventually established, was the first in Britain devoted to infertility, and for 35 years of my time professionally, until I retired from the National Health Service, I sat daily in front of infertile women and men—most of the time, listening. My appointments did not last for just five, 10, 15 or 20 minutes. It would be rare for me not to listen to a couple for at least half an hour, and that was true right up to the time of my last clinic. In those consultations, what I saw at first hand, again and again, was something which your Lordships cannot have seen in quite the same way. I saw the pain, the lack of self-esteem, the sense of total failure, the sense of deep bereavement, the anger that these women in particular felt, the despair they showed and the depression they frequently had. Your Lordships, as a House, are asking me, as a doctor, to make a judgment in a situation like that as to who is a suitable parent. You are trying to enforce the unenforceable. This is not a practical proposition.



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Lord Northbourne: My Lords—

Lord Winston: I am not going to give way, my Lords, I am afraid.

I was very grateful to the noble Lord, Lord Warner, for offering to give way on this occasion, but he said in Committee, just a little sarcastically—uncharacteristically—that he would try to help me as a clinician. Clinicians cannot be helped in this situation—this is a real entity in our clinical practice. To expect doctors ultimately to be policemen is not reasonable. It could be part of the code of practice, but I do not believe it could be a point of law. It simply makes bad law. Nor do I believe these warnings about the dreadful effect on our society. I think that they are simply untrue. The noble Lord, Lord Carlile, made a telling comment. His experience has not in any way damaged his family, and the experience I shall describe in a moment has not damaged the family I want to speak about. I promise that I do not intend to go on too long.


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