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Human Fertilisation and Embryology Bill [HL]

moved Amendment No. 108: 108: Clause 14, page 9, line 12, leave out subsection (2) and insert— ““(2) In subsection (5)— (a) omit ““, other than basic partner treatment services,”” , and (b) for ““a father”” substitute ““supportive parenting””.”” The noble Lord said: My Lords, I shall speak also to government Amendments Nos. 127, 176 and 177 and to Amendments Nos. 126, 108A, 108B, 127A and 110A. The 1990 Act contains a requirement for clinicians to take into account the welfare of the child, including the child’s need for a father. The Bill, as introduced in November, removes that requirement, while retaining the need to consider the welfare of the child. Concerns about the removal of this provision have been clearly made. Although intending to continue to omit the reference to a need for a father, we agreed to consider further how the welfare-of-the-child provision might best reflect comments made in Committee. As many noble Lords are aware, we have discussed this issue at great length and are grateful for all the comments that we have had on this very important issue. It is generally considered to be beneficial for a child to have a mother and a father, and many fathers play a significant and important role in their children’s lives. We also recognise that same-sex couples and single mothers can, and do, offer loving and supportive environments for raising children. Parliament has passed legislation allowing the legal recognition of civil partnerships and preventing discrimination on the grounds of sex and sexual orientation. In line with this government policy, the Bill provides for civil partners and same-sex female couples to be named as the parents on birth certificates. We feel that retaining the need-for-a-father provision, or indeed any other provision that mentioned a mother and a father, would be inconsistent with the wider government policy of promoting equality. In this context, that would mean that any provision that placed additional hurdles for same-sex couples or single women accessing treatment compared with heterosexual couples would not be appropriate or acceptable. That would inevitably be the case if the provision mentioned either just a father or both a father and a mother. In addition, it is the Government’s view that such a provision might be incompatible with the European Convention on Human Rights. Therefore, we cannot accept amendments that could be discriminatory and we would seek to overturn any that were introduced. The key requirement of Section 13(5) of the 1990 Act is the welfare of any child that may be born. As our discussions have indicated, at the heart of the welfare of the child is the need for supportive parenting. Accordingly, our amendment replaces the need for ““a father”” with the need for ““supportive parenting””. I am sure that everyone accepts the importance of supportive parenting in the context of child welfare and therefore the intention behind the amendment. I also recognise that for many noble Lords the key to this is how the term ““supportive parenting”” is defined. We consider that a supportive parent would be willing and able, first, to make a long-term commitment to safeguard and promote the child’s health, development and welfare and, secondly, to provide direction and guidance in a manner appropriate to the age and development of the child. This definition is suggested in an amendment tabled by the noble Lord, Lord Northbourne, the noble Baroness, Lady Finlay of Llandaff, and the noble Earl, Lord Listowel, who drew upon wording in the Children (Scotland) Act 1995. In our opinion, an Act concerning fertilisation and embryology is not the appropriate place to have specific statements or definitions about parenting, as it would probably have to have relevance to parenting generally and not just in the context of assisted reproduction. However, we acknowledge the importance of knowing the meaning of the term, particularly for clinicians who carry out the assessments, and therefore we believe that it would be appropriate to have an explanation of this term in guidance produced by the HFEA—in its code of practice, which is subject to approval by the Secretary of State. Accordingly, in addition to the requirement to take into account a child’s need for supportive parenting, we are including a provision in the Bill to make it a statutory requirement for the HFEA to produce guidance on the need for supportive parenting in the context of the welfare of the child. Another prime consideration about the term relates to how it would be applied in practice. People embarking on assisted reproduction are fully committed to having a child and have given a great deal of thought to it. Therefore, in general, it would be expected that such people would be supportive parents. However, as part of the consideration of the welfare of the child, in rare situations where the treatment providers are aware of any evidence or indications that that is not the case, they should take into account the need of the child for supportive parenting when considering whether to provide treatment. For example, where a child is conceived following gamete or embryo donation, it is beneficial for the child to be told of this fact at an early stage. This is something that we have discussed separately but, in this context, a commitment to inform the child at an early age would be indicative of supportive parenting. Single women and same-sex couples currently receive assisted reproduction treatment in licensed clinics and we would not want the Bill to impede that. It is therefore important that any interpretation of supportive parenting does not contradict or impede this position. I believe it is true to say that it is generally regarded to be beneficial for a child to have a mother and a father, but this does not preclude other parental situations from being regarded as supportive. All patients need to consider how they will provide supportive parenting to the child and how they will provide for the needs of that child. It is critical that the welfare of the child is safeguarded. We believe that this is achieved by referring to the need to have ““supportive parenting””. At the heart of this policy is the need for the child’s best interests to be met by parents. We therefore propose the following wording: "““A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment, including the need of that child for supportive parenting, and of any other child that may be affected by the birth””." Amendments Nos. 176 and 177 are consequential. I shall now move on to the other amendments in this group. This issue has been one of the most discussed in the Bill and I know that there are strongly held views on it. We have heard the concerns expressed and have tabled an amendment, as discussed, to try to address some of these concerns. It is our view that ““supportive parenting”” is a key concern when it comes to considering the welfare of the child. This comes down to the quality of parenting rather than necessarily having both a mother and a father. Amendment No. 108A, tabled by the noble Baronesses, Lady Deech and Lady O’Cathain, and the noble and learned Lord, Lord Lloyd of Berwick, suggests an amendment to government Amendment No. 108. This would replace ““supportive parenting”” with, "““support by a father and a mother””." Amendment No. 127A is consequential to Amendment No. 108A. ““Supportive parenting”” was chosen to ensure that the term did not present obstacles to the treatment of same-sex couples and single women. We believe that other amendments being proposed would make access to treatment more difficult in those family situations where there would not be a father, and that is not appropriate. In addition, such an amendment is not in line with the Government’s position of promoting equality. Amendment No. 108B, tabled by the noble Lord, Lord Northbourne, and the noble and learned Baroness, Lady Butler-Sloss, seeks to amend government Amendment No. 108 by inserting ““and family life”” after ““parenting””. This would mean that when taking account of the welfare of the child, a clinician would have to consider the child’s need for supportive parenting and family life, or the child’s need for supportive parenting and the advantages of having a mother and a father. I shall address each of these additions in turn. The first refers to family life. This introduces an additional factor. Not only does a child need supportive parenting; it will also require a family life. A family life would automatically be implied by ““supportive parenting””. Further guidance on the meaning of ““supportive parenting”” will be included in the HFEA code of practice. In our view, all children would automatically be part of a family, which in some cases would include brothers, sisters and a larger extended family, but in other cases could just be one other person—the mother. People who do not have a wider family would not automatically fulfil the criteria and would require additional consideration. In our view, neither interpretation of the additional wording is appropriate. The alternative addition proposed reflects wording in Amendment No. 110A, tabled by the noble and learned Baroness, Lady Butler-Sloss. This amendment would require a clinician, when taking into account the welfare of the child, to consider a child’s need for supportive parenting and the, "““advantages of having a father and a mother””." As discussed, any amendment that refers to both a mother and a father would place additional hurdles for same-sex couples or single women accessing treatment compared with heterosexual couples. The amendment would be inconsistent with the wider government policy of promoting equality. Amendment No. 108C, tabled by the noble Lord, Lord Northbourne, and the noble and learned Baroness, Lady Butler-Sloss, also relates to government Amendment No. 108, introducing ““supportive parenting”” into the welfare of the child provision. Legislation relating to fertility and embryology, as we are discussing today, is not the appropriate place to have a general definition of ““supportive parenting””. Such a definition would be much more appropriate in legislation relating to responsibilities towards children who have been born, such as the Act from which these words were inspired—the Children (Scotland) Act 1995. However, we recognise the importance of exploring the terminology, and we certainly agree with the principle of the definition proposed. This would be more appropriate in guidance than in the Bill. Amendment No. 109 proposes maintaining the requirement for licensed clinics to consider the need for a father of any child born before providing treatment. This would maintain the position under the 1990 Act, which, as I said earlier, would not be consistent with the Government’s wider policy to promote equality and to prevent discrimination on the grounds of sex and sexual orientation. Amendments Nos. 110 and 110A, tabled by the noble and learned Baroness, Lady Butler-Sloss, refer to both the father and the mother but require that a clinician consider the advantages or disadvantages of having both. Again, we can clearly see what these amendments are trying to achieve and we acknowledge their purpose. However, neither amendment would be appropriate as it would introduce a difference in consideration between heterosexual couples and same-sex couples or single mothers, so we cannot accept them. An argument has been put forward that the, "““need of a child for a father””," provision should remain as a principle. This is based on the view that it has not done any harm and has not prevented same-sex couples or single women accessing treatment. It does not prevent the provision being unnecessary, inappropriate and out of step with practice in society. If the provision is not doing any harm, it is probably because the HFEA code of practice provides for minimal additional consideration by clinicians for these couples or women, largely because it was out of step with family structures in today’s society. If this provision—or indeed any provision requiring consideration of a father—remained, the HFEA would have to reconsider the flexibility of its guidance to reflect the reaffirmed intention of Parliament. If the purpose of any provision is to prohibit single women and same-sex couples accessing treatment, which the Government would oppose, we need to ask ourselves why we would wish to retain such a provision. It would be inappropriate to retain a provision that undermines the promotion of equality in principle for the reason that it had not done any harm. The Government cannot support these amendments. I beg to move.