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Human Fertilisation and Embryology Bill [HL]

Once again, this has been a fascinating and informative debate, building on the excellent speeches that we heard from both sides of the House at Second Reading. I must begin by repeating some of the important points that were made then. However, before I do so, I should also say that this is a wide-ranging group of amendments and that, if there is a vote on one of them today, we will not necessarily consider that all the later amendments in the group can be taken as being consequential on the decision on the earlier amendment. I stress that the Government’s decision to propose the removal of the phrase, "““including the need for a father””," is not motivated by any attack on fathers or the concept of fatherhood. Nor is it an attempt at political correctness. The Government recognise clearly the extremely important role played by fathers in their children’s lives and the serious consequences that can follow where a relationship breaks down. That is why the Government have taken action to strengthen the role of fathers and to ensure that fathers are aware of their responsibilities. However, we are dealing here with a very specific context, and other factors come into play. As the noble Baroness, Lady O’Neill, said at Second Reading, we are all clear that the legislation does not in any way abolish the biological reality of fathers. That is quite correct: the Bill will not sweep away the biological need for men, but nor will it change the social reality of fathers for the overwhelming majority of families in this country, either now or in future. The idea that the Bill in any way sounds the death knell for fathers is very far removed from the truth. The question that we are dealing with is the duties placed on clinicians by law to examine and judge their patients. As a clinician, I am well aware of the difficulty of making such judgments about people’s circumstances and predicting with certainty what may happen at a later date. The Government came to the view that, on balance, the reference in the 1990 Act to, "““the need for a father””," should be removed, but that the general duty to consider the welfare of the child in a broad sense should remain. Clause 14(2)(b) removes the words, "““including the need of that child for a father””," from Section 13(5) of the 1990 Act. There is no ban on single women or same-sex couples receiving assisted-conception treatment. There is no requirement in law that there must be a father or any man involved in the upbringing of the child. Nor is it a matter of policy that single women or same-sex couples should not be able to access clinics. The outcome intended to be achieved by the wording of the 1990 Act is therefore unclear. As the noble Baroness, Lady Warnock, has previously remarked, it is ineffective and wishy-washy. To retain the provision would be to perpetuate a confusing and potentially discriminatory situation. I echo the lucid analysis of my noble friend Lady Hollis, at Second Reading, that fathers belong in children’s lives but that the phrase does not belong in the Bill. Either the question is meaningless, or the answer is ignored, or both are meaningful and therefore discriminatory. Amendment No. 55, tabled by the noble Baroness, Lady Deech, would retain the existing requirement for consideration of a child’s need for a father to be a condition of a treatment licence. Amendment No. 56 adds the requirement to consider the child’s need for a mother. The Bill retains the provision that requires a clinician to take into account the welfare of any child born as a result of treatment services when providing treatment. By removing the requirement to consider the need for a father, we are recognising the existence of a wider range of family arrangements. It is vital that children are raised in a loving and supportive family environment. The evidence suggests that the quality of parenting is the factor of prime importance and not necessarily the gender, or even the size, of the family. The Government fully recognise the important role that fathers play in their children’s lives. The proposal does not detract from that role but it does recognise the crucial role played by all parents. The noble Lord, Lord Alton, referred to a man being pursued by the Child Support Agency after providing sperm to a lesbian couple. My understanding is that the sperm was donated through a private arrangement—outside the scope of the Bill—and the removal of the provision on the need for a father will seriously encourage that in future. It did not come under the provision of the 1990 Act. Therefore, legally, the sperm provider, or the donor, is the father of that child. The noble Baroness, Lady Finlay, talked about the responsibility that will be placed on a clinician. It will be interesting to debate that when we discuss—next April, I believe—the Bill on professional regulation. However, I doubt that any clinician would take responsibility for that assessment if the Bill remains with the provision on the need for a father. The noble Baroness, Lady O’Cathain, has signalled her intent to oppose clauses in Part 2 and the associated Schedule 6. She has made clear her views about the importance of parenthood and the foremost interest of the child within the family setting. She has been supported by many noble Lords, who have expressed their concerns most forcefully. I fully understand the points made about the general principle that children should be brought up in a supportive family environment. No one would disagree with that. However, it is essential that we do not become sidetracked by general principles, important as they are, and risk losing sight of precisely what the Bill seeks to achieve. In essence, the Bill seeks to address current anomalies in the law in which parenthood is bestowed following treatment involving donated sperm. Addressing these anomalies is in the best interests of the child. Let me be clear what those anomalies are. At present, if an unmarried man and a woman, who may have known each other only for a short time, have treatment together at a licensed fertility clinic using donated sperm, the man will, as a matter of course, be regarded as the father of any resulting child. He will be recorded on the child’s birth certificate as such. In comparison, where two women in a civil partnership, who have been in a stable relationship for many years, have treatment in a licensed clinic using donated sperm, they are treated very differently. First, although the civil partner who gives birth is regarded, quite rightly, as the mother of the child, the other civil partner has no parental recognition or rights in respect of the child at all—this is a child, let us not forget, who is born to her legal partner. Secondly, the child would have only one parent, the mother, recorded on their birth certificate. These anomalies do not serve the best interests of the child. The Bill addresses them by enabling the child in such a situation to have two legal parents instead of one, both of whom could be recorded on the birth certificate as the mother and a parent. Let me take this opportunity to clarify that it is our intention that the child will have one mother and a parent, not two mothers. The woman who gives birth to the child will be the mother of the child. Clause 33 is absolutely clear about this. I hope that this clarification will put your Lordships’ minds at ease, knowing that it is not the Government’s intention to allow for a child to have two mothers. We must keep in mind that the legal parenthood provisions in the Bill appear only where donated sperm is involved. The 1990 Act ensures that sperm donors are not regarded as the father of any children born from their donation. Recognition of a same-sex couple as the parents of the child born following treatment with donor sperm does not take the parenthood from the father or oust him from the birth certificate, because there is no legal father. On the contrary, it enables the child to have two legal parents. Surely that must be in the best interests of the child. On Amendments Nos. 57A and 59B, tabled by the noble Baroness, Lady O’Cathain, the Bill sets out that any woman shall not be provided with treatment services unless she, and any man or woman treated with her, has been given a suitable opportunity to receive proper counselling about the implication of any treatment services being received. This provision is in the 1990 Act relating to a woman and a man, but the Bill now includes reference to two women being treated together. Before providing treatment using donated sperm, clinics are required to offer counselling to a man and woman who are treated together. Further to this, the Bill sets out that any woman shall not be provided with treatment services unless she and an intended second parent have been given a suitable opportunity to receive proper counselling about the implication of signing up to a parenthood agreement in respect of a child who may be born as a result of that treatment. I feel that it is of prime importance for couples to be encouraged to receive counselling in these situations in order to give them an opportunity to consider all the implications and consequences of treatments. The Government believe that it is highly desirable for any person undergoing fertility treatment or undergoing a parenthood agreement to receive counselling, in order to give them this opportunity. It is important that, when two people are signing up to a parenthood agreement, they are both fully aware of what this means at all stages of the process. We do not want to restrict this only to men and women being treated together, as the Bill also makes provision for two women to be the legal parents of a child. It is equally important that the intended second parent also has a chance to receive these services in order to understand the serious and lifelong commitment of the parenthood agreements that they are entering into. On Amendment No. 59A, the Bill makes provision for unmarried heterosexual couples and two women not in a civil partnership to enter into parenthood agreements and be recognised as the parents of a child born through assisted conception. Currently, an unmarried man and a woman who are treated together can both be considered the legal parents where donor sperm is used. The Bill introduces a provision that clarifies the fatherhood of the man through a fatherhood agreement and allows for two women to enter into a parenthood agreement when undergoing fertility treatment services so that they are both legal parents of any resulting child. The Bill sets out who the intended second parent could be in each situation: a male or a female partner of the mother. The Bill also makes provision for the person responsible to give notice to the intended mother or intended second parent where one party withdraws their consent to the parenthood agreement. If the provisions were removed by the amendment, unmarried couples and two women undergoing fertility treatment would still be able to undergo parenthood agreements but would fall outside the notification procedure. It is vital to let the other parent know that consent has been withdrawn. I entirely understand the concerns expressed in this debate, but I believe that the proposals in the Bill recognise society as it exists and value all parents. I hope that noble Lords will feel able not to press their amendments and have further discussions before Report.