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Human Fertilisation and Embryology Bill [HL]

My Lords, I declare an interest as an honorary fellow of the Royal College of Obstetricians and Gynaecologists, of the Royal College of Surgeons of Edinburgh and of the Royal College of Physicians of Edinburgh. I am also patron of the Lawyers’ Christian Fellowship and a member of a number of other Christian bodies. I had the great honour of presenting to this House the 1990 Bill, which became the 1990 Act, and I retain a feeling of fatherhood towards it. I also had the honour of serving on the Select Committee of both Houses that scrutinised the draft Bill under the very distinguished chairmanship of Mr Philip Willis, an honourable Member of another place. I thank the noble Lord, Lord Darzi of Denham, for his clear exposition of the Bill and its principal features. At the outset I should say how pleased I am that the Government have decided to abandon the suggestion of amalgamating the Human Fertilisation and Embryology Authority with the Human Tissue Authority. I believe that to be a thoroughly wise decision and, as the noble Lord said, it is warmly supported by the Joint Committee. It was said that the 1990 Act required fertilisation to be part of the definition of an embryo. I think that it is right to say that that was argued, but the court decided that the wording of the 1990 Act was sufficiently broad to capture an embryo however it was created. I wish to deal with certain points in the time allotted to me as a Back-Bench speaker because, as the noble Lord indicated, many issues of great concern and importance are dealt with in the Bill. When an activity is to be licensed, it is necessary to define the activity in question. In the draft Bill, the Government expressed a desire to license the creation and use of interspecies hybrids. They did this in a list corresponding generally to paragraphs (a) to (d) of new Section 4A(5), which they propose to insert into the 1990 Act. However—this is crucial—they added what was described as a catch-all provision, which they modified in manuscript in a letter to the Select Committee. They were attempting an exhaustive definition of interspecies embryos. Unfortunately, the scientific experts who came before the Select Committee found the catch-all provision to be incomprehensible. Because of that difficulty, the Select Committee hoped to afford the Government some help by suggesting lines that they could take. We therefore proposed a draft definition of interspecies embryos, which we recognised required work before being finalised. When the Government came to work on it, they dropped it altogether and replaced it with a power on the part of the Minister to make regulations. The difficulty with that is that if an activity is not restricted by the licensing conditions that are already in place, it will not be restricted at all. A ministerial regulation that comes thereafter will be rather late and rather retrospective, which is highly undesirable. It would be much better to have a working definition of interspecies embryos as a whole—one that was not only a list of particular cases but a description of what is meant by the phrase in the Bill. We managed to do that in 1990 for embryos in a way that has lasted and I am sure that the present Government have at least as good resources and qualified Ministers to do that as we had. Ours has lasted for 17 years; I hope that theirs will last somewhat longer. The Minister is of course an expert in the science associated with medicine and surgery. I therefore look forward to hearing him explain in his response what he understands by the words ““interspecies embryo””. I shall then be very happy to pick that up and table it as an amendment to the Bill when it reaches Committee. Although this is Second Reading and I should not be getting too deeply into Committee points, I should point out that one sees the force of this in two provisions in the Bill. The first is in new Section 4A, which it is proposed should be added to the 1990 Act. It says: "““No person shall place in a woman … an embryo other than a human embryo””." However, there is already a provision in Clause 3 that says: "““No person shall place in a woman … an embryo other than a permitted embryo””." As I understand the definitions—I hope that I have understood them correctly—every permitted embryo is a human embryo, but every human embryo, since ““human embryo”” is not defined, is not a permitted embryo. Therefore these two provisions do not stand together. Some misunderstanding underlies them, and I suggest that reconsideration of the definition provisions would not be out of place. The Select Committee also suggested that the Human Fertilisation and Embryology Authority should be given the power to grant an exemption if a given application before it did not really include the need for embryonic consideration—or the consideration of the embryo—because the definitions are very wide. Just as a planning authority may find with regard to certain applications for planning permission, it may find that no permission is necessary. We suggested that. I think that the Government thought that we were trying to provide for the authority to exempt IVF treatment altogether. Certainly from my point of view—and I think that I represent the committee’s views—that was not the point at all. The evidence shows that this could catch basic science that does not involve consideration of matters particularly related to an embryo. We therefore thought that this was a good power and I have the impression that much of the respected scientific community thought the same. I shall now pass, in the last two minutes available to me, from these rather technical matters to the point about removing from the 1990 Act the provision that required, in considering the welfare of a child in IVF treatment, consideration of the child’s need for a father. That provision in the 1990 Act was negotiated here in this House with considerable care and it was accepted unanimously here and I think also in the House of Commons. As I understand the process, male material is still necessary for the procreation of human life—I hope that I am right in that; I think that I am. If it is necessary, it seems extraordinarily undesirable, the very moment when the child comes into existence, to leave that out of account altogether. The provision in the 1990 Act is a very general one and does not prescribe anything. It just says that the need for a father has to be kept in view. However, so urgent is the desire to change this that the Government want to miss out entirely that very innocuous provision. I did not understand why that was so during the previous Committee stage and I do not understand it now. From my point of view, it would be much better left in place. We should recognise that nature requires male material in a living human being as well as female. That should be recognised in considering the welfare of a human being about to be brought into the world regardless of whether that human being will ultimately have a father in any ordinary sense of the word, though a male who is within the framework of his society and friendship may well be the one who would be sufficient to satisfy the condition, as the evidence before us showed.