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Human Fertilisation and Embryology Bill [HL]

My Lords, I wish to address the three amendments tabled by the noble Baroness, Lady Deech, which were eloquently explained on her behalf by the noble and learned Lord, Lord Mackay. I should make it clear what the Bill does in respect of same-sex couples and birth certificates. At present, we have the invidious situation where the female partner of a woman who gives birth following assisted reproduction treatment is not recognised as a parent of the child. I say it is invidious not only because it causes a disparity between same-sex couples and heterosexual couples, but because this means that the child would have a ““legal”” relationship with only one parent and not two. The Civil Partnership Act 2004 allowed for the acquisition of parental responsibility, but it did not provide for joint legal parenthood following assisted conception treatment. The Bill now addresses this. The Bill allows for female couples, whether they are in a civil partnership or are being ““treated together””, to both be legal parents of a child born through assisted conception. The Bill includes amendments to other Acts that allow for the second female parent to be registered on the child’s birth certificate under English and Welsh, Scottish, and Northern Irish law. The amendments of the noble Baroness, Lady Deech, would take these provisions out of the Bill. A number of consequences flow from the information recorded in the birth register. Birth certificates are used as prime evidence of status as well as rights to benefits, passports, inheritance, and parentage. For example, where parents are not married to each other, the father will acquire parental responsibility by registering the child jointly with the child’s mother under the Children Act 1989, or, for Scotland, the Children (Scotland) Act 1995, as amended by the Family Law (Scotland) Act 2006, or in Northern Ireland, the Children (Northern Ireland) Order 1995. In addition, a child’s birth is required to be reregistered under the Legitimacy Act 1976 when the parents marry after the birth, thus providing evidence of legitimation. A further example is that a father named on a birth certificate is evidence for liability for child support payments. Birth registration needs to be updated with our changing times. When the 1990 Act came into force it allowed for fathers to be recorded on a child’s birth certificate, following assisted conception treatment, where they were not in fact the genetic father of the child because donated sperm was used. The 1990 Act specifically excludes the sperm donor from being the father of any child born through assisted conception as a result of his donation. Therefore, where donated sperm or eggs are used, the birth certificate does not record the donor as a parent, and therefore is no longer a record of genetic parentage. Currently, where a single woman receives infertility treatment at a licensed centre, only one name would go on the child’s birth certificate. I am of the view that where there would not be a father, but there would be a same-sex partner, surely it must follow that having two legal parents recorded is better than only having one. I believe that by allowing same-sex couples legal responsibility for a child born through assisted conception treatment, we are also safeguarding the welfare of the child. We must all recognise that same-sex couples do have children. However, on occasion female couples may need infertility treatment to help them have a child, as do heterosexual couples. By allowing them to go to a licensed centre and both register as the child’s parents we hope we would dissuade same-sex couples from carrying out unlicensed self-insemination at home. It also means that, in the event that something happened to the mother, there is another person who is the legal parent of that child. Let me again clarify that birth certificates will not record that a child will have two mothers. The Bill sets out that the woman who gives birth to the child will be the mother and her female partner will be recorded as a parent. That is not a wholly new concept. Currently, if a same-sex female couple have a child as a result of assisted conception treatment, only the mother’s name will go on the birth certificate. If the second parent then goes through the process of adopting the child, an adoption certificate will be produced that has the mother’s name and the name of the second parent. For married couples there is a presumption of legitimacy, when a child is born, that the husband of the mother is the father of the child, and he will automatically be recorded as such on the birth certificate unless proven otherwise. As your Lordships will recognise, there are already births recorded where the husband of the mother is not in fact the genetic father and another man is. If the mother conceals that fact or is not certain which man is the father of her child, the birth register will contain an inaccuracy. I am not insinuating that that is acceptable behaviour; I am merely using this as an example to explain that birth certificates cannot necessarily be relied on to trace one’s genetic heritage. With this in mind, the clauses in the Bill which confer legal parenthood on female second parents, and make consequential amendments to birth registration law, are there so that second female parents can have the same responsibilities entrusted to them as any mother or father. I now turn to Amendment No. 142. The Bill consolidates the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 into the 1990 Act and extends them to same-sex couples. The 2003 Act allows for the registration of a man as a father to a child born as a result of assisted reproduction with donor sperm, when the embryo was created before his death but had not been transferred to his partner before he died. Clause 46 seeks to address any disparity by extending this provision to same-sex couples. In the case of female civil partners or female couples who are not civil partners, the Bill allows for the partner who would have been the parent of the child to be registered as such on the register of births if she dies before the embryo is transferred. These provisions are intended to address a tragic scenario. They will apply where a couple have started assisted reproduction treatment to have a child together using donor sperm and an embryo has been created, but the partner of the prospective mother dies before the treatment has been completed. The law applies for heterosexual couples, and I cannot see why it would not apply to single-sex couples, taking into consideration that the mother or the parent will have the choice of making that registration. In such rare situations, there are safeguards in place to ensure that the name is only recorded on the child’s birth certificate with the knowledge and consent of both parties. The provision allows for the child, in these circumstances, which are rare, to have two parents recorded on the birth certificate rather than one. To sum up, all the provisions that I have outlined are in place to correct the current disparity and in turn to help safeguard the welfare of the child born through assisted conception treatment. Having two parents recorded on the birth certificate will help to achieve that. I invite the noble and learned Lord, Lord Mackay, to withdraw the amendment.