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Clause 43 makes parenthood provisions for female couples who are not in a civil partnership where one of the women gives birth to a child following assisted conception treatment at a UK-licensed clinic. If valid female parenthood conditions are in place with the partner at the time of the conception of the child, the other woman will be treated as the parent of that child. The provisions in Clause 43 mirror those for unmarried heterosexual couples where the woman has a child as a result of assisted conception with donor sperm in a UK-licensed clinic.
The effect of the amendments proposed by the right reverend Prelate would delay the enactment of these important clauses, which have been debated extensively in this House and at length in another place. I encourage the right reverend Prelate to withdraw the amendment, but if he decides to move it, I invite the House to resist it.
Baroness O'Cathain: My Lords, perhaps I may ask the Minister a simple question. She used the word offensive when she was referring to some people who thought it was better for a child to have two parents, a male and a female. What is the Governments definition of a family?
Baroness Thornton: My Lords, we have discussed this at great length. Evidence presented to the Joint Committee of both Houses, for example, demonstrated that the emotional well-being and other aspects of development of children growing up in lesbian families are comparable to those in heterosexual families. Many noble Lords, including the noble Earl, Lord Listowel, have suggested that what is important is that children are brought up in loving, supportive families. It is unrealistic to suggest that that is an undesirable situation when that is what happens. We need to make sure that such children are not disadvantaged by the legal process through not having legitimate parents entered on their birth certificates. That is what the amendment is about.
The Lord Bishop of Southwell and Nottingham: My Lords, I want to emulate the noble Lord, Lord Alton, by keeping moderation as the tone of the debate. He set a good example at the beginning of this Session. I
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( ) The reference in section 48(5A)(b) to a civil partnership includes a reference to a void civil partnership if either or both of the parties reasonably believed at the time when they registered as civil partners of each other that the civil partnership was valid; and for this purpose it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid.
( ) the Schedule to the Population (Statistics) Act 1938 (c. 12),
Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 and 39. The Bill sets out provisions for legal parenthood for same-sex couples. Following assisted conception, provisions in the Bill allow for the female partner of the woman giving birth, whether in a civil partnership or not, to be entered as a parent at birth registration.
Amendment No. 38 relates to Amendment No. 36 as discussed in the previous group. Amendment No. 38, together with Amendment No. 36, ensures that children born to civil partners following assisted conception treatment will be treated as legitimate in the same way as if their parents were married.
Amendments Nos. 39, 47 and 94 relate to the registration of the birth of a child born by assisted reproduction to a same-sex couple. At birth registration, some statistical information is currently collected under statute by the registrar. This relates to the age of the mother and father and, if they are married, the date of marriage, whether the mother has been married previously and the number of children born to the mother. The information that the registrar is required to collect is set out in the Population (Statistics) Act 1938. Following the Bill, the questions that would be asked when registering the birth require amendment. The existing wording would be inappropriate for same-sex couples. Amendments Nos. 39, 47 and 94 make the necessary changes to the Population (Statistics) Act 1938 to allow for the collection of information relating to the age of the same-sex parents and the date of any civil partnership, where applicable, so that same-sex parents are treated equally to other parents.
(2C) Any reference in subsection (2A) or (2B) to a reasonable payment in respect of the doing of an act by a non-profit making body is a reference to a payment not exceeding the body's costs reasonably attributable to the doing of the act.
Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 41 to 45. Surrogacy is a very sensitive issue on which people hold differing views. We recognise that there are situations where a couple wish to have a child of their own but are not able to and may wish to
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Amendments Nos. 41 to 45 relate to surrogacy organisations and the aspects of their services for which they may charge. Clause 59 amends the Surrogacy Arrangements Act 1985 to clarify the position in law of non-profit making surrogacy organisations. It makes it clear that they may charge for certain aspects of their services on a non-profit-making basis, and enables them to advertise the services for which they may charge.
These bodies have a useful role to play in initiating negotiations with a view to making surrogacy arrangements and compiling information about surrogacy with a view to its use in making or negotiating a surrogacy arrangement. We recognise, however, that it is difficult for a surrogacy organisation to provide such services for the small number of people who seek advice and help with surrogacy in the UK if they are not able to make a charge to recoup the cost of providing them.
The amendments to Clause 59 state that such organisations may charge for certain activities, but only if they do not make a profitin essence, if it is not undertaken on a commercial basis. They may charge for initiating negotiations with a view to the making of a surrogacy arrangement such as enabling interested parties to meet each other to discuss a possible surrogacy arrangement, and compiling information about surrogacy with a view to its use in the making or negotiation of a surrogacy arrangementestablishing and keeping lists of people willing to be surrogates, or intended parents, for example.
These provisions would enable not-for-profit organisations to charge for putting couples in touch with each other, but not for any more direct intervention in discussions. The amendments in the Bill to the Surrogacy Arrangements Act 1985 are not seeking to turn surrogacy into a commercial industry. The 1985 Act took firm steps to ban any commercialisation of surrogacy and that principle has not changed.
Amendments Nos. 41 to 45 deal specifically with the issue of cross-subsidisation by surrogacy organisations. There was debate in the other place about the potential for cross subsidisationsurrogacy organisations charging more for the activities for which they are able to charge so that they can undertake those activities for which they are not able to charge. It is our intention that surrogacy agencies should not be permitted to charge more for the activities for which the Bill allows reimbursement in order to subsidise the cost of providing other activities for which charging is prohibited. Amendments Nos. 41 to 45 are necessary to ensure that this position is clarified in the Bill.
Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 46. This is a technical amendment so that Clause 53(5), which lists enactments where express provision has been made for female second parents, can be modified by an order made under Clause 64, which provides for consequential and transitional provisions. Not to do so would mean that the general rule in Clause 53 (2), enabling references to fathers to be read as references to female second parents, would continue to apply to enactments even where express provision was made in those enactments for female second parents.
Baroness Thornton: My Lords, I shall speak to this amendment. This amendment will remove the privilege amendment that was made when the Bill moved to another place. As noble Lords will be aware, the financial powers are restricted by the rights and privileges of the other place and by the Parliament Acts. As the Bill originated here and contains financial provisions, a privilege amendment was added to the Bill before its introduction into the other place to ensure that the financial privilege was not infringed.
(a) specify the maximum period of storage (if less than the statutory storage period),
(b) except in a case falling within paragraph (c), state what is to be done with the gametes, embryo or human admixed embryo if the person who gave the consent dies or is unable, because the person lacks capacity to do so, to vary the terms of the consent or to withdraw it, and
(c) where the consent is given by virtue of paragraph 8(2ZA) or 14(2), state what is to be done with the embryo or human admixed embryo if the person to whom the consent relates dies,
(2A) A consent to the use of a person's human cells to bring about the creation in vitro of an embryo or human admixed embryo is to be taken unless otherwise stated to include consent to the use of the cells after the person's death.
(a) lacking capacity within the meaning of the Age of Legal Capacity (Scotland) Act 1991, or
(b) being incapable within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000.
Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 55. I shall also speak to Amendments Nos. 57 to 61, Amendment No. 72, Amendments Nos. 89 to 93, Amendment No. 106 and Amendment Nos. 108 to 113 in this group.
Consent forms one of the cornerstones of the 1990 Act. A persons gametes cannot be used to create embryos without their express consent. Schedule 3 to the Bill amends the consent provisions in the 1990 Act bringing them up to date with new techniques for creating embryos, for example, by requiring consent for the use of cells to create embryos.
The Government listened very carefully to concerns raised in this House about this framework for consent in relation to the use of stored cells and cells from children with serious diseases, but also made it clear that any exceptions to the requirement for consent needed to be compatible with convention rights. The government amendments in this group provide for certain exceptions while also providing safeguards in recognition of those rights.
With regard to stored cells, the government amendments apply only to cells taken and stored before commencement of the Bills provisions and the exception applies only if the HFEA is satisfied that the cells are anonymous and thus the donor cannot be identified, or that the licence holder cannot reasonably trace the donor. If the researcher can identify and trace the donor, then unless the donor consents themselves their cells cannot be used. If the person identifies the donor, and they are found to be deceased, consent would be required from a person, for example a close relative, as set out in a hierarchy modelled on that found in the Human Tissue Act 2004. Before the cells can be used, the HFEA must be satisfied that scientific research would be adversely affected to a significant extent, if the only cells that can be used are cells that consent has been obtained for.
The amendments reflect the fact that rare or well researched samples are a valuable asset better to understand and treat serious disease. We have weighed the burden of being unable to use those cells against the rights of the person who originally donated them, and believe we have struck the right balance in the terms of the suggested amendments.
Further amendments tabled on Report in the other place rectified concerns about the interaction of clauses relating to the use of cells from deceased donors, and untraceable donors. The amendments enable a researcher to use the cells of untraceable donors where there is reason to believe they are dead, where no relatives can be traced to consent to use of the cells. The amendments also allow cells to be used if a donors family can be traced but it is not known, only reasonably believed, that the donor is dead. In these cases, a person in a qualifying relationship can now consent to use of the cells in the same way that they can when it is known the person is dead. In these cases, the HFEA must still be satisfied that the other safeguards are fulfilled before the cells can be used, including the significant adverse impact upon science test.
Regarding consent to the use of cells from children, these amendments apply where those children would never be able to give their consent because of age or a lack of capacity. This is the case with children affected by certain aggressive forms of diseases such as muscular dystrophy, Batten disease and spinal muscular atrophy. To this end these amendments propose that children with such conditions who are too young to consent or lack capacity should be excluded from the requirement for effective consent, if a person with parental responsibility gives consent. This exception is subject to strict safeguards which ensure that a childs cells cannot be used unless the HFEA is satisfied that the child suffers from a serious medical condition; that the research is intended to increase knowledge about that condition or about its treatment; and that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out using the cells of a person who could give their own consent.
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