Harris on the Human Fertilisation and Embryology Bill

12.38.21pm BST (GMT +0100) Fri 23rd May 2008

[May 21] Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): On these Benches-

Patrick Cormack (South Staffordshire, Conservative): On a point of order, Mrs. Heal. I do not wish to detain the hon. Member for Oxford, West and Abingdon (Dr. Harris), but I should like to point out that we have just over an hour left for this part of the debate. Do you have any power to influence the length of speeches? Those of us who take one particular view have had no opportunity to place it in this debate.

The First Deputy Chairman: That is hardly a point of order for the Chair, but, as always, I hope that Members, knowing the pressure of time, will be as concise as possible in their remarks. More to the point, perhaps, I hope that Members who are making interventions will not use them to make speeches.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): May I say to the hon. Member for South Staffordshire (Sir Patrick Cormack) that I am certainly aware of the issue that he has raised? There are people behind me on the Liberal Democrat Benches who want to speak, and there is a dilemma on whether to take interventions, which I hope I shall get through.

The Liberal Democrats have a party policy against unjustified discrimination, such as the inclusion of a provision in the Bill for the need for a father. I hope to show that the proposal is discriminatory and unjustified. This is a free vote issue for the Liberal Democrats as well, however. Everyone has a personal view on the matter, and I am sure that there will be many splits within parties. I am reminded that, when Woody Allen was asked for his personal view on lesbian parents, he said that he did not understand how children survived with even one mother, let alone two. Unusually, I think that he was wrong, because the evidence is clear that children in such families do very well. I am pleased to see the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) smiling at that.

I agree with the Minister that the removal of the need for a father provision from the Bill had nothing to do with attacking fathers or fatherhood, which is a ridiculous allegation, or with not wanting to tackle the problem of broken homes. I certainly recognise that problem and the consequences that it has for children, but the legislation is not about broken homes-in fact, it is about precisely the opposite. It is about a couple or an individual seeking to create a family and a home, and taking a serious decision to undergo treatment, which is not a decision to be undergone lightly. Many children are brought into the world in an unplanned moment, but the provision deals with people who are making a specific decision to create a family. It is astonishing that it should be seen as some kind of an attack on families.

The hon. Member for Islington, South and Finsbury (Emily Thornberry) very effectively pointed out that the need for a father provision has not brought a single extra father into a family, or retained a man in a family- [ Interruption. ] I thought that my mentioning her might make her stay in the Chamber; obviously not. Perhaps she has another Division to attend.

I just do not understand why anyone believes that young men who act irresponsibly and abandon their partners and families are suddenly going to read the statute on IVF treatment-these men are usually fertile-and decide to mend their ways. I have to say that I cannot see that happening.

Sammy Wilson (East Antrim, DUP): Does the hon. Gentleman accept that this is not about bringing more fathers into families, but about state recognition of the importance of fatherhood within families? If this provision goes through unamended, we will send out the message that it does not matter whether there is a father, while at the same time Government policy says that it does.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I have always taken the view that statute should not be used simply to send out a message, as there are other ways of sending out messages. Politicians with skill-the hon. Gentleman is one of them-can find other ways.

The right hon. Member for Chingford and Woodford Green provided us with statistics about broken families. He then tried to argue-I think rightly-that he did not intend his amendment to affect lesbian families or those of solo parents. However, in an intervention on the hon. Member for Brighton, Kemptown (Dr. Turner), the hon. Member for Morecambe and Lunesdale (Geraldine Smith) corrected that, stating that the amendment would affect not only lesbian families, but those of solo parents as well.

Geraldine Smith (Morecambe & Lunesdale, Labour): The intention behind the amendment is to ensure that the welfare of the child, rather than the desires of adults, is paramount.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I will come on to the welfare of the child in a few moments, which is probably the easiest way to deal with the hon. Lady's intervention.

We must remember the origin of the provision. In 1990, when this provision was put into the Bill, one of our Houses had voted by a majority of just one not to ban unmarried couples from accessing regulated IVF therapy. The sort of thinking going on at that time by some hon. Members here and, indeed, in the other place, was entirely different from that of today. It would be unthinkable for us to pass legislation to prevent unmarried couples from accessing IVF.

The hon. Member for Boston and Skegness (Mark Simmonds) should, I think, concede that his amendment has no advantages over that proposed by the right hon. Member for Chingford and Woodford Green, and it has many disadvantages. One disadvantage was pointed out in a penetrating intervention by the hon. Member for Wantage (Mr. Vaizey), who argued that if the provision had any effect, it would be a bad one, and that if it did not have an effect, it would be pointless.

A doctor who would like to see male role models has been cited-this issue will crop up again in the debate on the next group of amendments. If medical opinion is to be cited, however, it is sensible to look at consensus medical opinion rather than picking out one particular doctor-I can pick out one doctor very easily, and that person might have two opinions. We should look at what the British Medical Association thinks. It represents doctors, so-as far as these things go-it is a relatively democratic policy-making body. Another body is the British Fertility Society, which represents all the doctors working in that area. It wants shot of the need for a father provision, because it would tempt doctors to discriminate, which they do not want to do. It thinks that such a provision would be anachronistic, and it would be appalled if the House allowed colleagues to discriminate.

Iain Duncan Smith (Chingford & Woodford Green, Conservative): The hon. Gentleman has said that those organisations want shot of the advisory provisions, but have not the Government stumbled into an even worse case, as their proposals now ask doctors to interpret in a way that they did not have to under the father's clause? Now they have to interpret what the definition of supporting parenting really means for them.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): Doctors will have to do that, which is why the HFEA produces a code of practice. It is easy to set out the code in a non-discriminatory, light-touch way. I believe that the right hon. Member for Chingford and Woodford Green is sincere in proposing his amendment. I do not doubt the sincerity of the hon. Member for Boston and Skegness either, but it struck me that there are political aspects behind the amendment. I do not think that his heart is really into the idea of a male role model or asking a gynaecologist, of all people, to decide who a male role model should be.

We need to recognise that there is a problem with any sort of test. Fertile individuals are not required to pass a parenting test by the state before becoming pregnant, so why should the infertile? Many people, including the BMA, would argue that even the Government's wording goes too far in creating a hurdle for the infertile to cross, which the fertile do not have to. Many or almost all of the unsatisfactory families, if I may put it that way, come from the fertile part of the population, not from infertile people seeking infertility treatment.

William Cash (Stone, Conservative): I am listening to the hon. Gentleman's speech with interest. Can he explain why the part of the Bill entitled "Parenthood in cases involving assisted reproduction" contains an entire section on the meaning of "father" and on "fatherhood conditions"? Is he suggesting, as I suspect that the Minister is, that those words should be replaced by the words "supportive parenting"? That would not work, would it?

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I am afraid that I do not understand the hon. Gentleman's point, and I do not know which part of the Bill he is referring to. I therefore do not want to be drawn into a discussion, but hopefully the hon. Gentleman will have a chance to pursue the matter further.

There are really only two questions to be asked. The first is whether the discrimination-or the measure-is justified. The research is clear and is summarised by the British Medical Association, which says that there is no evidence that children do badly in families of that kind. According to the BMA,

"Social research on children born to these families has given similar findings to those children born to solo mothers. Their emotional and psychological development is comparable to children born of donor insemination to two heterosexual parents. In fact, the second female parent often has greater parent-child interaction than do the fathers in the heterosexual couples."

The reference for that quotation is one of those cited by the Minister-I know that the same briefing has been sent to all Members. Murray and Golombok made the results of their research very clear. They also looked into the question of solo mothers, and recognised the difference between different types of mothers on their own. Widows are different from young women who have been abandoned by the fathers of their children and who are living in poverty. Solo parents are often well-resourced, given that they often have to obtain private treatment. They often have established careers, and do not have partners. They are entirely different from families of the kind that the right hon. Member for Chingford and Woodford Green has examined in great detail during his trawls around the country.

Tony Wright (Cannock Chase, Labour): One thing troubles me. The hon. Gentleman has constantly referred to the question of treatment. The word "treatment" usually suggests the existence of an illness. What I am not clear about is whether the absence of a child constitutes an illness in the case of single-sex couples.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): There is a philosophical discussion to be had about what is the nature of illness and of treatment. I see that the hon. Member for Stockton, South (Ms Taylor), who chairs the all-party parliamentary group of infertility, is present. I know that she has had long arguments with primary care trusts about whether they should provide such treatment. It is not easy to decide that matter now, but it should be noted that the National Institute for Health and Clinical Excellence, which considers those issues and considers priorities relating to fertility and non-fertility, recognises that infertility is a condition that requires treatment. I think it reasonable to say that donor insemination for lesbian couples should be allowed, particularly because it is cheaper than in vitro fertilisation. In fact, I think that the situation would be legally questionable if it were not. I hope that I have addressed the hon. Gentleman's point, even if I have not satisfied him.

I want briefly to deal with the evidence given to the Joint Committee by Professor Golombok. I have a huge amount of respect for the hon. Member for Salisbury (Robert Key), but I do not think that one of the many quotations that he read out was exactly the right quotation. In the evidence session of 27 June, Professor Golombok said

"these greater difficulties for children in one-parent homes are very much associated with the circumstances of being in a one-parent family rather than just whether or not there is a father present. For example, a drop in income, lack of social support for the family, a disrupted relationship with the father with whom they had often spent many years and separation from that father, and moving into stepfamilies. There are all kinds of factors involved so although children in one-parent families overall do seem to be disadvantaged, it is very important to look at why."

If a child has a father and that father goes, it is a different scenario from being brought up without a father in the direct household. I think Professor Golombok makes that clear, and the same applies to lesbian couples.

The second question concerns discrimination. I was surprised by what the right hon. Member for Chingford and Woodford Green said about the Human Rights Act, because I think that it showed a failure to understand what the Act is about. It does not just provide a remedy. It is not just about saying "You will suffer. Okay, suffer, and then in a few years' time when you have gone through the courts-if you have the resources and the wherewithal-you will have a remedy." The Human Rights Act, which he prayed in aid, along with human rights law-it was unusual for him to do so, but he did so when it suited him-is about ensuring that there is a framework for legislation and the behaviour of the state that does not intrude into private matters in breach of individual liberties.

I should have thought that Conservative Members would recognise the importance of restraining the state and its unreasonable intervention in private matters. That is why Ted Webb was right to say that there was a legal obligation for the Government-I urged this on the Government-to ensure that their laws are as compliant as possible. In the absence of justification for intervention, the law is simply not compliant.

Let me now give three examples of discrimination, because that has been requested.

David Burrowes (Shadow Minister, Justice; Enfield, Southgate, Conservative): Would the hon. Gentleman's concerns about discrimination not be satisfied by clause 53, "Interpretation of references to father etc.", which refers to the father and the woman who is the other parent? In cases in which a woman is

"in civil partnership at time of treatment"

or treatment is

"provided to woman who agrees that second woman to be present",

references to the father of the child who is a parent

"by virtue of that section"

could also be read as a reference to the woman, who would be classified as the "other parent". In terms of the legal definition, there would not be the discrimination that concerns the hon. Gentleman. That is the point that the Joint Committee made in its recommendations.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I believe that that is about birth certificates, and bringing provisions into line. The Minister has indicated that I am right, which is an achievement for me nowadays. I pay tribute to my hon. Friend the Member for Harrogate and Knaresborough (Mr. Willis), who chaired the Committee. He recognised the difficulty of teasing the issues apart.

Edward Vaizey (Shadow Minister, Culture, Media & Sport; Wantage, Conservative): Will the hon. Gentleman give way?

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I will give way once more.

Edward Vaizey (Shadow Minister, Culture, Media & Sport; Wantage, Conservative): I merely want to confirm that the hon. Gentleman is absolutely right. The hon. Member for Enfield, Southgate (Mr. Burrowes) was referring to the definition section concerning birth certificates, legitimacy and nationality, which has nothing to do with parenthood.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I thank the hon. Gentleman.

I was going to give three brief examples relating to discrimination, but I shall now confine myself to two. In an e-mail, Natalie Gamble, a fertility lawyer dealing with discrimination cases, has stated:

"to say that no lesbian couples are denied treatment as a result of the need for a father provision is simply untrue. I have had five clients in the past year who have got in touch for advice after being denied access to treatment. In one case at a private clinic a couple were told that the waiting list for donor sperm was very long and they could not even be put on it because they were a same sex couple. In another case a primary care trust eligibility criteria for NHS funding stated explicitly that, due to the duty to consider the need for a father, lesbian couples were not eligible for funding even if they were infertile."

That may or may not be the Birmingham case, but I can tell my hon. Friend the. Member for Birmingham, Yardley (John Hemming)-although he is no longer present-that the "frequently asked question" that he read out applied to private funders. The NHS eligibility criterion was discriminatory, which it should not have been because that is unlawful.

Many clinics, including Bourn Hall-cited by the hon. Member for South Cambridgeshire (Mr. Lansley) as being in his constituency-used to refuse lesbian couples, until they realised that they need the money. However, they no longer need the money, as lesbian couples are forced to pay because they cannot obtain NHS treatment.

Another example from the same lawyer is an account by a client, whom I cannot name for obvious reasons but who says "He"-I think that refers to the clinician-

"got out his criteria list, underlined the word 'heterosexual' and ringed the word 'stable' in the sentence 'Needs to have been in a stable heterosexual relationship of at least 2 years'. Later he also referred to the sentence at the bottom of the list of criteria which said 'Welfare of the child issues', saying 'It could also be seen as a welfare of the child issue'."

Those are just two examples, but they explain why the Equality and Human Rights Commission has issued this statement:

"The central issue here is not fatherhood; it is fairness. The current legalised discrimination in the provision of IVF services is something that we should be ashamed of as a country. We agree with the Government that parliament should not let another day go by in which single women and lesbian couples are denied access to fertility treatment on exactly the same basis as everyone else."

Even if they receive that treatment, they should receive it on the same basis as everyone else.

The quotation continues:

"The Commission understands the importance of male role models for children, but believes that this is, in principle and in practice, a matter for the parents themselves, and not an issue for legislation. We shouldn't be the sort of authoritarian society"

-Trevor Phillips is saying this-

" in which an 80 per cent. male House of Commons presumes to instruct women on how and with whom they bring children into the world."

James McGovern (PPS (Mr Pat McFadden, Minister of State), Department for Business, Enterprise & Regulatory Reform; Dundee West, Labour): Will the hon. Gentleman give way?

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): I am keen to finish my speech, because others wish to speak.

I have spoken to clinicians about what the Bill will mean, and I want to reinforce a point made by the Minister. Fortunately, the code of practice currently enables the need for a father provision to be dealt with in a relatively moderate way, but if we voted for a requirement for clinics to observe a need for a father provision, they would have to apply the test to every single group of people in order not to discriminate. John Parsons at King's College hospital has said that in eight years he and his colleagues have conducted 8,000 treatment cycles with 6,000 patients. Going through a detailed role model test with 6,000 patients would be a huge burden.

I ask those Members who support either of the amendments in question why they want to introduce a measure that could be unfair, and at best would be ineffective and bureaucratic. That is not the right thing to do. The Committee should support the Bill as it stands.

John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat): I want to make it clear, as my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) did, that I stand here as a Liberal Democrat but not for the Liberal Democrats; I speak in a personal capacity. Although there is policy here, and although a former leader of the Liberals, Lord Steel, piloted the Abortion Act, the Committee will be aware that other prominent Liberals, such as Lord Alton, left the Liberal party over the Act. I personally believe that there is a Liberal case to be put for a review of current legislation. I should also point out that as a man, I necessarily speak on this issue with a degree of natural caution and reticence. I can have no clear idea at all what it is like to be pregnant.

The most depressing thing that I read recently on this topic was in yesterday's edition of The Guardian. The usually sound journalist, Jackie Ashley, after contrasting opposing views and the very different beliefs behind them, wrote:

"There is no sensible conversation between the opposing views to be had."

That is borne out by my own observation of the House so far in debating any abortion issue. Such debates are emotive; related ten-minute Bills, unusually, are voted down without consideration; slogans replace arguments; the absolute right to life is starkly set against the absolute right to choose; rhetorical assassination replaces reasoned arguments. It is to be regretted that in the run-up to this debate, personal remarks by Members about Members have served to disfigure and to some extent to inflame debate.

Despite profound moral differences, there is some common ground: we all believe that the abortion rate in the UK is far too high; we would all prefer a world in which there was no abortion, nor demand for it; we all recognise that our laws are among the most permissive; and we all qualify the rights that we claim-even the Catholic Church sanctions therapeutic abortion, and even pro-choice charities object to some choices. Where we differ is over the grounds, and consequently the limits, of abortion. I argue that, irrespective of any religious view, the justification for abortion becomes enormously harder from the moment when the foetus becomes conscious or responsive to pain. I also argue that we cannot be completely certain when that moment occurs, but that a precautionary principle should apply, and, where consciousness may exist, we must act as though it does. Frankly, there is no basis for giving anything a right other than that it is conscious, and there is no more significant event in the life of any being than becoming conscious.

I note, too, the long and undistinguished history of denying full consciousness, or degrees of sentience, to those whom we choose to exploit, whether it is animals, fellow primates-or slaves. I accept, however, that the area of foetal sentience is a grey one and that the Committee, sadly, does not want to build the law around it or to apply a precautionary principle. The issue for the Committee is independent viability.

My hon. Friend the Member for Oxford, West and Abingdon has made the point that breaking the link between viability and abortion limits would leave legislators groping around for another criterion on which to base limits. He is fundamentally right on that point, although viability is not to be understood here in the ordinary sense. Most babies, and some adults, are not capable of surviving without massive intervention from parents or carers. They are not independently viable. My one-year-old grandchild is not independently viable. Viability here is used in the technical sense:

"the capacity of the foetus to survive-even with assistance-outside the womb."

Everyone agrees that such a definition self-evidently must cover different cases as medical technology improves, and need not be related-should not be related-to a fixed gestation period, which is why few rational people can object to a review of the law.

Some people think that the dates should be changed, if some foetuses are viable at a given date, for example, 23 weeks-we are talking about a significant percentage in that regard. Some think that the dates should be changed if any foetuses are viable at a given date, and others, including, I believe, my hon. Friend the Member for Oxford, West and Abingdon, think that the dates should be changed if most or the gross average of foetuses are viable. People choose their own option, but anyone who thinks that the dates should be changed if, and only if, foetuses show themselves to be viable on average at a particular stage must also bear in mind the fact that the foetuses that nature delivers early-the research group that we have all been talking about-are most likely to have had clinically troubled pregnancies and individual problems, which is not the case with aborted babies or babies in general at that stage.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat): My hon. Friend is making a thoughtful speech. The vast majority of premature births are due to maternal factors, not to foetal factors; the foetuses are not sick in those cases. Different definitions of viability exist, and mine might be different from others, but surely it is best to follow the one provided by paediatricians and neonatologists, who devote their lives to dealing with those tiny babies. They are clear about their definition, which is that the viability threshold is the point at which a foetus would have a decent chance-a more than 15 per cent. chance, for example-of surviving outside the woman. That is why they say that there is no evidence of a significant improvement in the survival levels of pre-term infants below 24 weeks' gestation in the past 18 years. The paediatricians say that, and we should follow their advice.

John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat): I have discussed clinically troubled pregnancies, and I presume that that covers the maternal factor. I see no reason why the Committee must use the same definition as clinicians.

The moral reality is that someone who aborts a baby at 22 weeks, might be-they cannot know that this is not the case-aborting a baby or foetus that is viable within the narrow meaning of the legislation, which is indisputably the case, and in any other sense. There are people in our world who are in no way inferior to us in capacity, intelligence and beauty, despite being born at 22 weeks. That is a fact, and it ought to give us cause for reflection.

Quantitatively, as the EPICure 2 study shows-the Minister and I saw the draft findings last week-there is a statistically significant increase in the survival rate of premature babies at 24 weeks and an increase, although not a statistically significant one, in respect of 23 weeks. We need to explore further exactly why that is happening. It is false to say that no new evidence is available. EPICure 2 differs markedly from the Trent study; it is more widely based and it shows something different. I freely admit that the EPICure 2 study does not show a decrease in the level of disabilities that, sadly, premature babies endure. However, morality in this case is not a numbers game; the exact percentage surviving is not the big issue. One cannot easily argue on Monday that the percentage mix of a human-animal embryo is of no decisive moral significance, and then on Tuesday argue that percentages matter.

May I conclude by addressing three counter-arguments? I sense-this came across in what the Minister said-that many who are opposed to even modest reform feel obliged to hold an imaginary line; they feel that if they concede 23 weeks or 22 weeks, who knows where the case for abortion may go. The Minister said that we could be right back at the pre-1967 situation. Again, that is the mirror image of the slippery slope argument that we had yesterday: if we allow pointless experiments to be carried out on hybrid embryos up until 14 days, some scientists will make progress in creating human-animal embryos. As in yesterday's case, all one can say is that the law says what the law says. It clearly does not follow from the fact that the law forbids something at 25 weeks that it is bound to forbid it at 23, 22 or 20 weeks. If it forbids something at 22 weeks, it might still allow it to happen at 20 weeks.

Another argument was made on Second Reading by the hon. Member for Beckenham (Mrs. Lait), and I take it very seriously. She argued that many, but by no means all, late abortions are special cases; I believe that she mentioned under-age girls, menopausal women and foetuses with late-detected abnormalities. I think that the statistics show that 40 per cent. of such cases result, in a sense, from late choices. That is what is odd about them; they involve people who made a late choice to have an abortion.

Jacqui Lait (Shadow Minister, Communities and Local Government; Beckenham, Conservative): The hon. Gentleman has paraphrased the list that I suggested on Second Reading, because it included women who were menopausal, very young girls and those who have mental health or learning disability problems. I think that he agrees that all those people are very vulnerable.

John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat): I do not dispute that, but one can always have exceptions to legislation. We have always set a limit for exceptions, and that is not an argument against a general lowering of the point of termination.

Evan Harris: Finally, I was genuinely shocked by a disgraceful argument in the briefing note circulated by the British Pregnancy Advisory Society. As an argument for no reduction in the time, the letter sent to Members stated that

"the special care baby units would be over stretched trying to care for the premature babies to the detriment of care for those born a couple of weeks later".

If we set aside the obvious fact that non-aborted foetuses do not end up on life support machines, it is unacceptable to make our decisions on life and death depending on current funding arrangements in the NHS. That illustrates what I said earlier. To some extent, the special pleading is characteristic of a closed mind. If minds are closed, we will have the usual tribal stand-off. If they are not, we may yet have some useful legislation.