I beg to move amendment No. 5, in page 1, line 15, at end insert

`by a person to whom a licence applies,'.

With this it will be convenient to take the following amendments: No. 6, in page 1, line 15, at end insert

`either by a person to whom a licence applies, or outside the United Kingdom.'.

No. 7, in page 1, line 28, at end insert

`, and provided that the obtaining of the sperm was lawful, and that the storage, if any, and treatment were lawful under this Act.'.

No. 9, in page 2, line 13, leave out from `death' to end of line 14 and insert

`by a person to whom a licence applies.'.

No. 8, in page 2, line 13, leave out from `death' to end of line 14.

No. 10, in page 2, line 25, at end insert

`, and provided that the obtaining of the sperm was lawful, and that the storage, if any, and treatment were lawful under this Act.'.

No. 11, in page 2, line 30, at end insert

`and was created in the course of treatment services provided to the parties to the marriage together by a person to whom a licence applies'.

No. 12, in page 2, line 30, at end insert

`and was created in the course of treatment services provided to the parties to the marriage together either by a person to whom a licence applies or outside the United Kingdom.'.

No. 13, in page 2, line 46, at end insert

`, and provided that the obtaining of the sperm was lawful, and that the storage, if any, and treatment were lawful under this Act.'.

No. 14, in page 3, line 3, leave out from `together' to end of line 4 and insert

`either by a person to whom a licence applies or outside the United Kingdom.'.

No. 15, in page 3, line 3, leave out

`by a person to whom a licence applies.'.

No. 16, in page 3, line 18, at end insert

`, and provided that the obtaining of the sperm was lawful, and that the storage, if any, and treatment were lawful under this Act.'.

I look to you, Mr. Sayeed, for guidance on how to have an orderly discussion of this large group of amendments. I have little experience of private Member's Bills—in fact, I have zero experience of them—especially with so many amendments to consider. I propose to split discussion of the amendments for my own consideration, although, clearly, that will not bind other members of the Committee. I should be grateful, Mr. Sayeed, if you would bring me up short if I err procedurally.

Let me assist the hon. Gentleman. First, one proceeds exactly as one would on a Government Bill. Secondly, one speaks strictly to the amendments.

I shall certainly speak strictly to the amendments. What I wanted to ask was whether it would be convenient to the Bill's promoter, other members of the Committee and you, Mr. Sayeed, if I were to deal first with amendments Nos. 7, 10, 13 and 16, which seek to insert identical words in various parts of the Bill and deal with lawfulness of procedure. In the light of any debate on those amendments, I will then return to amendments Nos. 5, 9, 11, 6, 12, 14, 10 and 15, which are linked but, at different stages, provide different options. They are obviously linked to the final group, because they were selected together. I am sure that the selection was correct in that respect.

First, I deal with amendments Nos. 7, 10, 13 and 16 and invite comments on them from the promoter. Each of the amendments seek to add the same words to the new subsections that the Bill will insert in the Human Fertilisation and Embryology Act 1990 after section 28(5).

On first reading the Bill, it struck me that the lack of a requirement to follow lawful procedure is a significant omission. I have already heard comments from the hon. Member for Northampton, South, and we will need a full debate on the question of whom we seek to punish—as he puts it. It is important to state the need for lawful consent to be obtained. We know that in the vast majority of cases of those affected by the Bill, the gametes or embryo have been obtained or removed lawfully. Indeed, generally speaking—although I would be interested to hear of any figures on the matter—the procedures will have been carried out in the United Kingdom in licensed premises, which implies that the storage and subsequent use of gametes and embryos has been lawful. I have no problem with that in terms of my amendments. Therefore, the vast majority of people who may benefit from the Bill by being able to name a father on the birth certificate, should not regard the amendments as a threat to that.

However, in a minority of cases—specifically that of Diane Blood—it has been established in the High Court that the consent to obtain the sperm was not lawful in the understood sense. The Court of Appeal judgment did not tackle that issue, so the ruling stands. I do not believe that there is any doubt about that. The matter must, therefore, be considered carefully.

We are discussing the Bill in the context of a climate in which consent is increasingly significant. In the light of events at Alder Hey hospital and elsewhere, there has been a focus on the need for consent, and for that consent to be appropriate and proper. The Government have led the way by debating the need for a statutory framework for consent instead of relying on case law, which formed the basis of the judgment in the case to which I referred. Practitioners and patients should know exactly where they stand. People should be offered the chance to give full and proper consent before their bodies are interfered with in life. I am surprised and alarmed that legislation is being framed now, post-Alder Hey, without due regard to proper consent, and that such an approach has Government support. I am fearful for the effect that such a signal will send about the Government's intentions, which I generally support, in terms of beefing-up consent law. In that context, the amendments need careful consideration, by the Government and by the hon. Gentleman.

In recent debates, we have also discussed embryology in the context of cloning. The Donaldson report stressed the importance of consent. Indeed, it was one of its recommendations that the consent of the person from whom gametes and embryos are derived is extremely important and the Government's response was fully to endorse that recommendation, and rightly so. In the light of that, it is surprising that a Bill should be promulgated which does not insist on lawful consent from whom the gametes are derived—that is, written consent, as established under the 1990 Act.

Thirdly, there is considerable concern about the prospects for reproductive cloning. The Government have rightly set their face against that and have sought to reassure the public, stating that no matter how desperate people may be, regarding themselves as victims and as having been dealt a bad hand, and seeing reproductive cloning as their only hope for reproduction and relief of their suffering—which is no less suffering for it being emotional and psychological—the law is the law and there should be no concessions. I accept that people see themselves as victims in the light of something that happened earlier over which they as the offspring of that act had no control. As a result, there will be a call for relaxation of the need for a robust law and robust requirements for consents. I urge the hon. Member for Northampton, South and the Minister to think carefully before allowing a Bill to go forward that allows such a signal to be sent out and such a law to be passed.

The hon. Gentleman said that he does not want the children of in vitro fertilisation or artificial insemination—under new subsections (5A) and (5B)—to suffer as a result of an unlawful act over which they had no control. The point of the Bill is to provide remedy for such children who will not, because they will not have been in existence, have had any responsibility for an unlawful, less than adequate or unlicensed practice that may have been carried out in the creation of their life. Nevertheless, that is a dubious basis on which to defend a proposal to allow the practice of obtaining gametes without consent, possibly in unlicensed premises without precautions in respect of the storage and use of the gametes.

It is incumbent on the hon. Member for Northampton, South to defend that view. At present, it is extremely unlikely that the children have the capacity to demand a change in the law. There is not yet a clamour from the children, as victims, to demand a father's name on a birth certificate. We recognise that it is reasonable for mothers to want the name of the father of their child on the birth certificate—in many cases, their husband or partner of long standing who was taken from them in tragic circumstances by an intervening fatal illness or accident. That wish is well understood, but we must understand that it is their wish, not the wish of the children. The argument against the amendments is that the children should not be punished by the insistence that the law is followed to the letter of the 1990 Act and to the custom and practice in case law of the obtaining of sperm.

Clearly, therefore, we have a duty duly to consider the mother's wishes. I do not deny that, but it is much more difficult to say that the mother is an entirely unconnected party in every case with what might be unlawful removal of sperm or gametes or unlawful practices in relation to the storage and use of gametes and embryos. Admittedly, other people will be involved, such as medical practitioners, and the hon. Gentleman feels that it is exclusively those practitioners, rather than the people requesting the treatment, who should be punished for unlawful behaviour in relation to the storage and use of gametes, or assault or negligence in relation to the removal of gametes from people who have not properly consented to such intervention on their autonomy and bodily integrity.

I question that. In the case of Diane Blood, the request for removal of sperm stemmed from her. The medical practitioner took the sperm feeling that advice that the appropriateness of such an act, which was urgent at the time, could be obtained later, but that act was later deemed to have been unlawful. That was challenged in the High Court, which endorsed the view of the Human Fertilisation and Embryology Authority that such a move was unlawful in terms of consent.

The argument that my amendment would punish innocent parties and that the sanction should apply only to those who perform the assault is therefore inadequate. I have advanced an argument in favour of the amendments in terms of the context and of the signals sent out and the need for the Government to be consistent. I have also started to deal with the argument, which I believe the hon. Gentleman will advance, that it is unfair to victimise someone for unlawful behaviour by someone else.

The reason that we have legislation and common law on the matter is that the House, and, in the case of the issue of gaining appropriate consent, the courts, felt it to be required. In those circumstances—I believe that there is broad consensus in the House, although hon. Members have their own views about what is appropriate—it is wrong to frame laws that do not insist, in the case of such an important matter, that that is so.

The HFEA is in the firing line in such matters. I asked it its view about the absence of a lawfulness provision in the Bill and have just been handed—this is as new to me as to the Committee—a response from Ruth Deech, chair of the HFEA. In a letter of 25 April, she says:

``Thank you for your inquiry about the issue of lawfulness in the Bill to make provision about the circumstances in which a man is to be treated in law as the father of a child resulting from fertility treatment after his death. The HFEA is enjoined by statute to uphold and enforce the lawful administration of fertility treatment, the storage of gametes and the truthful recording of treatment and its outcome. Now that the ambit of embryo research is to be extended, and reproductive cloning expressly prohibited, it is more important than ever that we continue to uphold those principles. An enactment that would give validation to the result of unlawful acts would tend to undermine our efforts in this field.''

I should be surprised if the House felt comfortable proceeding with a Bill in that form, without an amendment such as mine—I do not claim that mine is the last word on the matter—in the face of opposition from the person and authority that the Government have given responsibility for tackling the issue. I cannot emphasise enough that the authority under whose ambit the matter will fall seems to be opposed to that lack of provision in the Bill.

What discussions have been held with the HFEA on the drafting of the Bill? When the hon. Gentleman approached me about supporting the Bill, I raised my concern about the Blood case and although my sympathy for the person involved, and it is reasonable to ask what consultation has taken place.

The Government asked Professor Shelia McLean to conduct a review of the matter, and they said in a press release that they generally endorse the views of Professor McLean's report. On 3 December 1998, in a written answer, the then Minister for Public Health said:

``We welcome Professor McLean's Report which, following a thorough and comprehensive review of the complex issues involved, has delivered sensible and well argued recommendations. These include:

`in terms of the common law provisions relating to the removal of human gametes the report recommends that the current requirement for formal consent following adequate disclosure of information, should remain'''.

A separate point states:

``the courts should be asked to determine whether the removal of gametes is lawful where there is any doubt about such removal in cases where consent cannot be given in the usual way;

the requirement in the Human Fertilisation and Embryology Act 1990 for consent to certain treatment provided under the Act (such as in-vitro fertilisation and donor insemination) to be given in writing should remain, and be extended to all treatment provided under the Act''.

Further recommendations from the report that are included in the written answer, and which are relevant to the debate, are:

``that the 1990 Act should be amended to remove from the Human Fertilisation and Embryology Authority any discretion to permit the export of human gametes that have been removed unlawfully.

recommendations about the status of children born after the death of the gamete provider and the need for gamete providers to take account of succession rights of such children when storing gametes.''—[Official Report, 3 December 1998; Vol. 321, c. 257.]

The report could not have been clearer in backing the HFEA's position in court about the importance of lawful consent and, in cases in which consent has been deemed to be unlawful, worries about the ability to go further and export gametes that have been unlawfully obtained.

The legal expert whom the Government asked to examine the matter, and whose recommendations they have supported, was clear that consent—and therefore lawful removal of the gametes—is critical. If such consent is not obtained, and the gametes are not obtained lawfully, subsequent actions, such as the export of gametes, should not be allowed in any circumstances. There should be no discretion. From that it follows that, if the question had been asked about whether we should legislate to provide for fathers' names on birth certificates in circumstances in which there is no evidence that lawful consent had been obtained from the person whose gametes have been used and that he had consented to paternity, I believe that report would said that such consent must be obtained before that path is gone down.

The hon. Gentleman makes some interesting and valid points that should, perhaps, be addressed at a later stage or in another place when we have taken on board what he has said, undertaken further investigation, and considered the ramifications of that.

Will the hon. Gentleman expand on what he said with regard to illegality and legality in the context of the rights of a child and the UN convention on the rights of the child?

The hon. Lady makes a fair point. All the commentaries on the discussion emphasise that a balance should be struck between the rights of the child and the rights of men with regard to their bodily integrity, the use of their gametes and, unless they behave recklessly, their consent to paternity. To express the matter in tabloid terms, men have rights too.

The rights of the child are, of course, important. The ambit of the Bill is to provide those rights, and I therefore wholeheartedly endorse it, subject to the amendments. However, I cannot endorse the assault of someone by the taking of their gametes and the creation of a life without their lawful consent, simply to meet the presumed rights of a subsequent child. Professor McLean describes in detail why those concerns should be accommodated explicitly and in terms. In any ethical code, the principle of chronology should be given consideration, and a child can, of course, be produced only after the rights of the father have been considered. The right to control the use of one's gametes should also have been given a higher priority than the right of a child to have a father's name on its birth certificate: the latter is important, but the former right is critical and fundamental.

Professor McLean addresses the issue in detail, and I want to put some of her comments on the record. Her report was accepted and endorsed by the Government. In the summary, she states:

``In these circumstances, therefore, there should be no derogation from the general rules of law.''

That remark refers to the issue of whether there should be exceptions, specifically with regard to the removal of gametes, to the general rule about consent to intervention.

The report continues:

``In any event, gametes have a special status and it seems reasonable to conclude that, if anything, they should be accorded increased rather than reduced protection by law.''

Professor McLean goes on to say:

``Given the extent to which a written consent can elevate the quality of proof that a real consent has been given, consideration should be given to amending the law to require that consent to all assisted reproduction provided under the terms of the 1990 Act should be given in writing. Since gametes are widely perceived to be special, given their potential to become new human beings, there is nothing in domestic or European law which would preclude the state from making such a regulation in pursuit of public policy.''

The end of the summary answers the hon. Lady's question about balance by stating that if gametes are

``used only by the partner of the deceased, indirect succession rights may accrue to the child. However, this must be balanced against the possibility of unreasonably restricting the decision of the donor as to what use may be made of his sperm after his death.''

Hon. Members who are considering the Bill should read the McLean report. Its main message is loud and clear: consent is critical. That message is endorsed by the Minister. I accept that the Bill cannot achieve everything that one might wish, but it is bizarre and unreasonable that its main proposal is not found in full in the McLean report and goes against its main message, which is the importance of lawful consent.

I am interested that the hon. Gentleman focused on the McLean report in his reply. I do not have it in front of me but, from memory, McLean said that if the Government—I realise that the measure is a private Member's Bill—fail to take action to change the law, Britain might actually be in breach of the UN convention. The report can be used in several ways to substantiate my argument on behalf of the child, as opposed to the hon. Gentleman's argument.

I believe that the hon. Lady is incorrect. Obviously, I cannot ask for the sort of help that the Bill's promoter has, but the relevant section of the report states quite clearly that European case law certainly allows for member states' law on the matter to determine what is and is not lawful. I endorse the majority of the Bill's intention because, if it is lawful in common law and statute law to store and use gametes, it is unreasonable to deny—under UN convention rights, as well as European convention rights and European law—the child the right to have the father's name on the birth certificate. If I am given the chance, I will find the relevant section in the McLean report that states that.

I wish to make it clear that we are not discussing the general case. We are discussing the specific case, in which it has been established that there has not been lawful storage or use, nor lawful removal of the gametes with consent. Prompted in part by the hon. Lady's intervention, I will quote further from the report. In paragraph 1.12, Professor McLean discusses whether the general rule—that lawful consent needs to be obtained for removal of gametes—might be waived in various circumstances. It states:

``on the question of in which circumstances derogation from the general rule might be permitted, it might be felt that any diminution of the rule that intervention is permissible only with the actual consent of the individual (apart from the exceptions outlined above) would significantly weaken the values which underpin the law of consent. Singling out the removal of gametes from the general rule would recognise the purported interests (not rights) of third parties in the genetic material of another. It would also potentially lead to additional claims for exempt status being made, resulting in the significant erosion of the principles generally held to be vital in our law. Even if no floodgates are opened by such a move, there are consequences which would flow which would require most serious consideration.''

The context in which we are discussing the Bill is post-Alder Hey, and follows the debate about the importance of consent in the use of embryos for therapeutic cloning, stem cell research and cell nuclear replacement. The Government have sent strong statements and signals about the absolute bar on reproductive cloning, even when people invoke their rights to have children who can be produced, in theory, only by reproductive cloning of a father—or, indeed, a mother—who has since died.

I have not found any source of expert opinion that supports the purpose of the unamended Bill, which is to meet the rights of that very small minority of children for whom there is concern that the obtaining of gametes was unlawful. Clearly, in the majority of cases that does not arise. I do not believe that we are talking about the case in the hon. Lady's constituency about which she spoke briefly but eloquently on Second Reading and about which she has campaigned for a long time. We are talking about cases such as the Diane Blood case. Paragraph 1.13 of the McLean report states:

``As has already been noted, gametes are generally seen as having a special status. But that status is designed to protect, by prohibiting their use in certain ways and ensuring that they are accorded maximum respect. Rather than enhancing this protection, placing them in the only category which does not require formal consent for removal is likely to downgrade that special status. It is of note that the clearest majority of those who responded to the Consultation Document''— a document which preceded the report—

``believed that the law should not be changed to permit non-consensual removal of gametes (86 per cent.)''

The promoter of the Bill—and, almost certainly, other hon. Members—do not suggest that the law on consent should be changed. However, promulgating further laws based on the 1990 Act would, following the High Court judgment, the McLean report and the amount of public opinion, fly in the face of expert advice that the Government and hon. Members should bear in mind. Indeed, the Government made a point of endorsing that advice in their response.

We should consider how that situation can be remedied with some sort of compromise; to do so now will allow the hon. Member for Northampton, South to deal with it in his reply. The hon. Gentleman may want to write to Professor McLean to get her views on the debate. I quote from her report but I do not claim to speak for her—although, because I serve on the medical ethics committee of the British Medical Association with her, I know the direction from which she tends to come. The Bill would allow the father's name to be put on the birth certificate in cases involving the lawful obtaining, storage and use of gametes or embryos. It would also allow it—in future and retrospectively—where those conditions do not obtain, and where there has been unlawful obtaining of gametes or embryo.

We have several cases to consider. I shall deal with ones where there is no problem. The measure is clearly sensible in regard to cases where consent for the removal of gametes has been legally obtained, with a view to subsequent and prospective treatment and therefore paternity. The 1990 Act is in a sense defective. Because it goes out of its way to ensure that estates could be closed, providing that there should be no rights of succession to children born, say, 30 years after the death of a father—usually it is a father—it closed down the possibility of having the father's name on the birth certificate. I have no problem with cases where consent has been legally obtained and other members of the Committee and of both Houses probably will not either.

I also do not have a major problem with the retrospective application, for the very reason that the hon. Member for Stourbridge (Ms Shipley) gave on Second Reading when questioned by the right hon. Member for Bromley and Chislehurst (Mr. Forth) on retrospectivity. There is a general presumption in law that retrospectivity is wrong; indeed, some of the promoter's own amendments show how difficult it is to get the drafting on retrospectivity right. The argument in defence of retrospectivity is that consent was given. The hon. Member for Stourbridge said in that debate:

``Surely retrospection is the right course in this instance, because written consent will definitely have been given.''

She then talked about her constituent Marion Jordan, who had wanted children and planned to have them, but whose husband died of cancer before they were able to do so. However, he had consented to his sperm being used. The child is Mrs. Jordan's husband's, but he cannot be registered on the birth certificate. The hon. Member for Stourbridge added:

``Retrospection must be right when consent has been given.''—[Official Report, 23 March 2001; Vol. 365, c. 648-9.]

So say I, and so say all of us. That is an accurate and correct response to an untypically important point about retrospection made by the right hon. Member for Bromley and Chislehurst, which I endorse. Although hon. Members must always be concerned about ``retrospectivity'', when consent has been given, ``retrospectivity'' is reasonable because it is prospective from the time of consent. However, to allow such ``retrospectivity'' the Registrar-General must be given some discretion, which we will discuss in later amendments. There are no problems in such cases.

There are, however, significant problems in two further cases. The first is a prospective case in which even when consent has not been lawfully obtained—it would have been established case by case in common law—the Bill will provide a remedy for a mother who may be a party to obtaining gametes without consent. It would usually be the mother who is involved; it would be surprising if a medical practitioner waded in without a request from the prospective mother, the partner of the gamete provider. That would send the wrong signals. It would not fit in with the spirit of Professor McLean's recommendations, and would not be satisfactory to the HFEA, as recorded in the letter that I quoted from the chairman, Ruth Deech. I know of no remedy for such problems.

The second case concerns a retrospective application when it has been established that there was not lawful consent. It would be a reasonable compromise if the wording could be changed to ensure that the children concerned could benefit from having their father's name on the birth certificate because there was some doubt, until it was established by the High Court in the Blood case, that written consent was required. It may not be easy to frame such a proposal, but it must be possible. If we are to go for retrospective law—that is, an ad feminem creation of law specifically to deal with Mrs. Blood's case—that should be acknowledged in the Bill and should refer only to retrospective cases where proper consent was not obtained. Professor McLean's recommendation is that there should be no discretion for the HFEA to endorse subsequent action—export of gametes—when consent has been lawful. That is an extremely powerful point; I would find it fundamentally difficult to allow prospectivity in amendments to the 1990 Act that do not take account of the importance of consent.

I invite the hon. Member for Northampton, South to consider such a compromise, if there is sufficient parliamentary time to do so, and to take into account the views of Professor McLean and other experts on the matter. Despite the strong terms of the HFEA's representations, it recognises the value of such an approach. In Mrs. Blood's case, I believe that the doctor concerned telephoned the HFEA for advice. There was doubt about whether the sperm should have been removed and there was a ``without prejudice'' permission to store it pending a final decision on whether there could be further use of that sperm. In spite of having huge sympathy for Mrs. Blood, allowing a change in the law to enable her to have Mr. Blood's name on her child's birth certificate should not mean that the House has opened the way, either to sending the signal that I have described, or forcing a situation where, following an unlawful obtaining of sperm without proper consent for paternity, it is possible for that paternity to be registered. That is why the first part of my amendment that talks about the need for the consent to be lawful is even more important than lawfulness in the use of gametes.

That concludes my comments on amendments Nos. 7, 10, 13 and 16. If the argument applies to the case of a married woman using her husband's sperm, it applies to the other three cases: married and using donor sperm; unmarried and using the partner's sperm; unmarried and using donor sperm. That is why the amendment is written in the same terms in those four cases. I may wish to return to the other amendments that deal with substantially different matters once I have heard hon. Members' contributions.

I am sure that the hon. Member for Oxford, West and Abingdon has performed a service to the Committee by raising these issues. I have no particular expertise on the 1990 Act and I cannot claim to have made a detailed perusal of the Bill, although it is often useful to come to it fresh. I also do not have any constituency experience of the public policy aspects. We are all sorry about the case of Mrs. Blood. It would seem from what the hon. Gentleman has just said that it would be difficult to accommodate her entirely understandable wishes within the legislation as it might be amended.

The hon. Gentleman's contribution gives me cause for some pause. I come, perhaps reluctantly, to a different conclusion from him. First, it is always interesting—and I make no strongly political point—when a Liberal Democrat seeks to be less libertarian and more restrictive. Knowing his attitude to many matters, one would have put him on the liberal wing of his party. If he is warning the Committee that there is a problem here that is worthy of consideration, we should take note. Secondly, although for the reasons that I have already given, I have not consulted the HFEA on this matter, I also know Ruth Deech and I have a high regard for her and for the work of that authority. If it has reservations, they should be treated seriously.

The hon. Gentleman's third point concerned consent. I think that the Committee would agree, in the light of Alder Hey and the increasing litigiousness of society, as well as the demands we all make or the expectations we may have of the health service, that there should be a progressive raising of standards and a greater degree of transparency and clarity about what is required and what is delivered. None of those matters gives me cause for concern.

However, it appears from the hon. Gentleman's comments—I crave the Committee's indulgence if I have misunderstood the Bill—that two different themes may have become conflated. They centre on the different uses of the word ``treat'' and the phrase ``consent to being treated''. As I read the Bill, the consent to being treated is, to use a concept that I touched on in my first intervention, fundamentally a registration issue. Was the father happy to be treated as the father? That has nothing to do, except contingently, with the medical treatment of the father to obtain the gametes for the conception to take place. It is a separate process. It is a registration and legal process. Was the father informed and aware of it?

Partly, in the light of the Blood case, although perhaps not exclusively, I construe from the Bill that the father should be treated as being the father of the child, unless it can be proved that he did not consent to being so treated. In other words, it is a legal hurdle to prove that he is happy with that process. In cases where he is unable to give an informed consent, perhaps because he is comatose, the absence of any prior indication that he was not so consenting would suggest that he had given implied consent to it. That may be a hard test and there may be difficulties.

The hon. Member for Oxford, West and Abingdon has referred to the possibility of illegal and unethical acts. However, it is a reasonable practical test that also applies to wider issues of public policy on human fertilisation. If a test were to be imposed—in registration, rather than in health service or operational terms—to determine whether consent had been given, it would clearly be good practice, for reasons referred to in the McLean report, for that consent to be in writing. However, supposing consent were not available for some reason—perhaps because the written consent had got lost, or was not regarded as legally valid—and the putative father was either dead or comatose, it would be impossible to reactivate that consent, even if everyone agreed that in fact that would have been the intention of the putative father. It would be impossible to recover the position. It seems to me that that is what the Bill is about. Perhaps the hon. Member for Northampton, South can reassure the Committee about that. I see him nodding, and feel full of anticipation.

As the hon. Member for Oxford, West and Abingdon said, that is quite a separate issue from obtaining consent to medical treatment. I doubt whether there is any dissent in the Committee on that. Of course, it is also good practice to obtain consent to medical treatment. It is wrong and unethical, and should be illegal, for doctors to intervene without that consent being explicit, in whatever form it can best be obtained in the circumstances. No one wants to send a signal from the Committee suggesting that we are prepared for anyone to cut corners or to play God in that respect. However, with respect to the hon. Gentleman, after listening to his argument carefully and at some length, consent should not necessarily be incorporated into the Bill. There are many things that we should do about consent, but I am not sure that we should consider them in the Bill. There is a real need to accommodate Mrs. Blood, and a limited number of other cases. I am worried that the hon. Gentleman's well-intended amendments and interventions, although it is right that they should be discussed, may have the effect of turning aside from the intention of the Bill. That makes it difficult to accommodate the hard cases that have already taken place, and the Bill is not the right place to be dealing with important consent issues about medical treatment. I notice the hon. Gentleman grimacing. Perhaps he is right to do so. We all understand—there is no dissent among us—that it is good practice to put consent in writing and to formalise it in advance of the event, wherever that is possible. However, as the hon. Member for Stourbridge has pointed out, a situation in which everyone has acted with good intentions but where it has not been possible to have formalised, written consent—and it is certainly not always possible to prove that it has been done—difficulties may be created for the child. There may also be a difficulty for the mother of the child. That will not have progressed the matter from the Blood case, and in an attempt to meet a wider objective, we may have failed on our narrower objective. At the moment, my reservations are tentatively against the hon. Gentleman's amendments.

The hon. Gentleman should be aware that he is opposing the thrust of chapter 2 of the McLean report, which is clear about the importance of consent. The hon. Gentleman feels that the timing of the Bill is not right in respect of consent issues. The Bill amends the 1990 Act. The thrust of the McLean report—and these issues ranked higher in the report than the Bill—was to ensure that consent is buttoned down in terms of the quality and lawfulness of the 1990 Act. The hon. Gentleman is entitled to his considered opinion, but he should acknowledge that he is rejecting the thrust of the McLean report.

I sought to distinguish between consent to be treated as a father and consent to being medically treated in order to become a father. Those are interrelated, but different, concepts. I am against the hon. Gentleman's camp in certain respects. The Bill is an honourable and honest attempt to cope with the difficulties and human problems that arose during the 1990s. No one is arguing that we should fail in future to tighten up procedures to obtain written consent both to be registered as a father and to be treated as a father. My fear—the hon. Gentleman acknowledged the difficulties—is that in attempting to set higher standards in future, we might end up being unable to accommodate the mistakes of the past. If the Bill were of no value, it would not meet the needs of the individuals whom we all want to benefit from it.

I shall say no more because I have no final or settled view on the matter. I hope that the hon. Member for Northampton, South can satisfy me that he is not trying to put one across the Committee. I am sure that he is not.

Perish the thought that I would try to put one over the Committee. The intent of the hon. Member for Oxford, West and Abingdon is to be applauded. He wants to ensure that the McLean report's recommendations are upheld and put on to the statute book. Many hon. Members would share that objective.

I apologise for the brevity of my response, but it would be a denial of the purpose of my private Member's Bill to become heavily wrapped up in the debate about consent, the legality of the removal of sperm, and treatment. From the outset, the aim has been to change only the part of the 1990 Act that deals with registration. I said on Second Reading that if we entered more deeply into the moral debate, it would be impossible to proceed and press the Bill through its necessary stages. The amendments would prevent us from achieving that narrow objective.

The removal of sperm is not governed by the 1990 Act. Whether it is lawful to remove sperm is governed by common law. That is the current position and I do not want to alter it. If a child is denied registration—denied having his father's name on the birth certificate—I believe that it is in breach of the 1979 United Nations convention on the rights of the child. Article 2.1 states:

``The rights accorded to each child as set out in the convention should be respected without discrimination of any kind, including that of the child's birth or any other status.''

If we fail to implement the Bill, we will also be in breach of articles 8 and 14 of the European convention on human rights, which deal respectively with the rights to choose or discover who one is and to enjoyment of rights without discrimination of birth. Therefore, the Bill will ensure that British law is brought into line with the laudable intentions of both the UN convention on the rights of the child and, more specifically, articles 8 and 14 of the European convention on human rights.

I have already said that the removal of sperm is not covered by the 1990 Act, but is governed by common and criminal law. If sperm is removed without consent, that may constitute a battery under criminal law and may give rise to civil action in trespass or negligence if the man lives, unless it is done, for example, in the person's best interests. Professor Sheila McLean discussed those issues in her report, which led to the Bill. I heard the request to write to Professor McLean and I would have no objection to that letter being sent.

The hon. Member for Oxford, West and Abingdon talked about not only removal of sperm, but treatments. Written consent to treatment is a requirement of the 1990 Act unless it is carried out abroad, but, under common law, written consent is not required for the removal of sperm. In the Diane Blood case, which he mentioned and is perhaps uppermost in our minds, one brave lady fought long and hard for the right to put the father's name on her child's birth certificate. That was not tested in the High Court, and the Court of Appeal emphasised the importance of consent, but it was not tested.

Will the hon. Gentleman repeat his comments on what was not tested? I could not follow them.

In the Diane Blood case, the High Court did not establish whether the removal of sperm was lawful—it was not tested. The Court of Appeal emphasised the importance of consent, but it was not tested and there was no substantive outcome from the case.

I am a little confused about the hon. Gentleman's reference to the High Court. I understood that the High Court ruled against Mrs. Blood, that the obtaining of the gamete had been unlawful under common law and that the Court of Appeal dealt only with export thereafter under the European law on freedom of movement to seek medical services.

The hon. Gentleman is correct inasmuch as the High Court established that the removal of sperm was unlawful, but that was not tested in the Court of Appeal. That is all that I am saying, so he is correct inasmuch as I am prepared to go along with his interpretation.

I have already said that there will be a considerable burden on women to show that the removal of sperm was lawful, particularly if it is carried out overseas. Medical practitioners who carry out the procedure might provide evidence, but the lawfulness of their actions may not be tested at all. Again, we can refer to the Diane Blood case, which was difficult because of the question of consent. As we said, the question of lawfulness was a matter of debate for both the High Court and Court of Appeal, but if a woman were unable to register a man as the father because of a practitioner's failure, one would have to ask who should be punished for that breach of legality. Should that be the woman or the child? Should the child be denied the right to have his or her father's name on the birth certificate? In terms of legality, any punishment should be against the person who has committed the offence.In that case, an unnecessary burden would be placed on the victim of the offence, rather than on the person who committed the act in the first place.

That sounds like a good argument, but the universalisation of that would not be a good thing. It is clearly incumbent on those who seek treatment or, indeed, goods and services not to be reckless as to whether they have been obtained lawfully. There is some responsibility on such people. I am not an expert, but I think that the same arguments apply to the purchase of goods that are stolen or derived from nefarious activity. In a sense, the purchaser is a victim, but if he knows that a nefarious act is involved even though he did not commit it, he is not only a victim.

I respect the hon. Gentleman's opinion, but I disagree in that an unnecessary burden would be placed on the mother to try to find out such information in advance and whether she could trust the answer that she received. She may find out that a practitioner is unlicensed and acted unlawfully only after the event.

Will the hon. Gentleman look into what would happen in the following, admittedly rather extraordinary, combination of circumstances? I genuinely do not know what would happen. Let us say that a woman is raped, but for some reason wishes the name of the child's natural father to appear on the birth certificate. Both parents would then be registered, albeit the child is the result of an illegal act. I cannot imagine that such a case would arise, but it might. I wonder whether the law provides for or precludes registration arising from an illegal act. That may be germane to this debate.

I am afraid that the hon. Gentleman's question was so complex that I will have to study in great detail what the outcome would be in such a case.

To return to the amendments, I must tell the hon. Member for Oxford, West and Abingdon, with the greatest respect, that were it my intention to try to implement all Professor McLean's recommendations, that task would have been far beyond the scope of a private Member's Bill. Although I believe that his points are valid and the Government will have to address them, we cannot at this stage introduce amendments that go beyond the narrow scope that I have mentioned. In mirroring the Human Fertilisation and Embryology Act 1990, we are trying to ensure that the rights of mothers who have undertaken treatment in cases in which the fathers are deceased are brought into line with those granted by legislation already on the statute book.

I accept that the Bill cannot implement all the McLean report's recommendations, even if the hon. Gentleman agrees with them and there is Government support for that. However, does he accept that there would be merit in ensuring that the Bill and other amendments to the 1990 Act are consistent with the McLean report if he agrees with it? Should the Government not also agree that amendments to that Act should be consistent with the report if they endorse its recommendations? I am talking about implementation with consistency, rather than simply mirroring the 1990 Act.

I follow that argument, but I repeat that, although the 1990 Act needs to be amended in many more ways, the narrow scope of the Bill means that this is not the time or place to do that. We are serious about trying to ensure that we do not continue to penalise mothers and children in the cases that were described. The hon. Gentleman asked for numbers. I cannot help him with all the figures that he seeks, but I believe that there have been roughly 30 cases since the 1990 Act was placed on the statute book, but we have no way of knowing how many of those women have been treated in the UK or abroad.

To treat the matter simply, does the hon. Gentleman agree that, when a father can be clearly identified, the child born of that father's seed should be entitled to have his or her father's name on the birth certificate?

That is the very intent of the Bill. I agree with the hon. Member for Oxford, West and Abingdon that Professor McLean's recommendations are valid and need to be addressed, but this is not the time and place for that debate. If we fail those mothers and children, the loss that they have suffered and the victimisation and discrimination that they are suffering will continue until all aspects of Professor McLean's report have been dealt with by the Government. It would be unfair of us to impose that continued burden on them, when we have a real opportunity to correct an anomaly in the Act, which concerns only the narrow issue of the father's name being recorded on the birth register.

I am more than happy to write to Professor McLean to clarify her opinion about the points that the hon. Member for Oxford, West and Abingdon has made. I might be able to consider whether his points could be wrapped up into a simpler amendment, but I feel that that will not be possible if we are to make progress during this Parliament. I am not, therefore, persuaded by his arguments.

I shall try to put the Government's view briefly, given that there are many other issues to discuss. I have much sympathy with the points that the hon. Member for Oxford, West and Abingdon has made. He has raised important issues about consent. However, I have some serious problems with his amendments.

The Government have a clear position on consent. We accept the recommendations in the McLean report that the existing provisions on consent are vital and should remain: those in common law, in criminal law and in the 1990 Act. We considered the report's recommendations in great detail, and the hon. Member for Oxford, West and Abingdon is absolutely right that the issues around consent are wide ranging and critical for patients across the board, not simply in the area under discussion. That is why common law contains provision on obtaining sperm by consent, and why the 1990 Act covers appropriate consent for storage and treatment.

Nothing in the Bill weakens the law on consent. Nothing in the Bill makes it more acceptable to obtain or store sperm unlawfully, or to carry out treatment unlawfully. It is the Human Fertilisation and Embryology Authority's duty to pursue and to enforce the 1990 Act, and it is very clear that doctors who store or treat without appropriate consent under the Act commit an offence.

The question is whether this is the right place to raise the issue of consent in the way that the hon. Gentleman has done in his amendments. I agree that it is important to recognise and to protect men's interests, and that men should have control over the use of their gametes. However, the amendments do not give men any greater control over the use of their gametes—over the withdrawing, storage or use of their sperm. That is properly dealt with by other laws. If there are concerns about the enforcement of the law, or about consent not being properly recognised under the 1990 Act, we should further debate that. However, the Bill is about birth registration, and accepting the amendment would not increase protection for men's interests and their control over their gametes.

Does the hon. Lady accept that a small number of women might exist who, regardless of the man's consent, want their child to have the man's name on the birth certificate? A law that contained no sanction or disincentive against stealing gametes and going abroad for treatment, could, in a minority of cases, breach men's rights and control over paternity.

The Bill will not act as an incentive or disincentive in the kinds of cases to which the hon. Gentleman refers, but we should be wide-eyed about such cases. From his example, it is not clear to me that a name appearing on a birth certificate would act as an incentive or disincentive to people who feel passionately about that situation. However, the law should protect people in such circumstances, and it should be unlawful to extract sperm from a man without appropriate consent, or where it is not in the man's best interests. That protection should exist in law, which should not be about creating spurious incentives or disincentives for birth registration because that is a separate issue. I agree that we should be concerned about protecting men's interests, and it is right that the law addresses that, but I do not think that the birth registration issue would provide any additional protection for men in such circumstances.

The Minister said that she did not think that my example—where birth registration became such a big issue that a woman would go to great lengths to obtain it—would arise. However, the unfortunate case of Mrs. Blood is a clear example of someone who feels so strongly that she has campaigned magnificently on the issue for years—and I do not suggest that her failure to obtain lawful consent was malicious or an effort at trickery. The hon. Lady suggests that that case is a freak and that there will be no more like it. However, the literature, including the McLean report, records tens of cases in north America where questions of that nature have been asked about unconscious men and the extraction of their sperm. The situation is more prevalent than she suggests.

People clearly feel strongly about birth registration, but whether the Bill acts as an additional incentive or disincentive to behave lawfully or unlawfully at an earlier stage is not the main question. The important thing is that people should have proper protection under the law, and that that law should be enforced. The hon. Gentleman's argument is important, but it should be covered in a separate debate. It is separate from whether birth registration should take place under the Bill. The amendment would not provide any additional protection in terms of consent and it could cause additional unintended problems. My hon. Friend the Member for Northampton, South has already raised the issue of the difficulties that could arise if a health practitioner fails to comply with the law. If the parents were not, and could not have been, aware that the practitioner had not behaved lawfully—that might not come to light until after registration—the amendment would not allow for that child to have the father registered on the birth certificate.

Would the amendment not give rise to a situation where a valid registration that had been issued could be later withdrawn or cancelled if a subsequent irregularity came to light?

I suspect that that might well be the case, although I am not aware of the details of what would happen in cases where registration had taken place. Clearly, all kinds of problems would be raised if an unlawful act that had nothing to do with the woman or family involved came to light afterwards.

The hon. Gentleman asked what would happen if a rape had taken place. Yes, the man who committed the rape could be recorded on the birth certificate. It is an interesting point.

Perhaps I could soften the point by giving another context. The putative father could be under age, and his action would therefore be illegal. It might, however, be perfectly sensible and, dare I say, more palatable to wish to put him on the birth certificate.

The hon. Gentleman makes an interesting point. For all the reasons that have been raised, it is right that we take consent extremely seriously and provide proper protection in the law. Equally, however, I am not persuaded that that means that it is necessary, advisable or desirable to introduce the amendments into the Bill, which addresses a specific, narrow issue arising out of the McLean report.

I am grateful to the hon. Members for Daventry (Mr. Boswell) and for Northampton, South and to the Minister for addressing some of the points that I have raised. I am satisfied on a couple of matters, but I am not fundamentally satisfied, for the reasons that I shall give.

The hon. Member for Daventry described me as being on the liberal side of Liberal. He is well known to be on the liberal side of Conservative, which is not saying much in many cases, but it is fair in his case. However, that is not the issue, although I know that he was not making a serious point. Those on all parts of the spectrum will have concerns about the matters that we are discussing. Fundamentally, it might come down to how strongly one feels that the rights of the gamete producer come before those of the child under the UN convention.

It is important to tackle the point that was made by the hon. Member for Daventry about the terminology. My amendment No. 7, and, indeed, amendments Nos. 10, 13 and 16, tag on to the end of a statement that reads:

``the man shall be treated for the purpose mentioned in subsection (5E) below as the father of the child unless it is shown that he did not consent to being so treated.''

We should be clear about the fact that ``treated'' is in the terms of new subsection (5A)(d). It is consent not to medical treatment, but only to legal treatment. It is not, therefore, covered by the McLean report or, I suspect, the recent debates about the importance of lawful consent—that is, competent consent—being given.

As the Minister understands and has said before, the issue is not the written consent, but the fact that that attests to the view that there had been adequate consideration, explanation and opportunity for discussion. The written nature of the consent is used as a proxy to record the fact that the consent process has been full and proper. If the written consent disappeared in a fire, consent would still be deemed to be lawful because of what was signified, rather than because of the piece of paper itself.

Instead of the amendments tabled in my name, I was tempted to table an amendment with the words, ``a letter to show that he did not lawfully consent to being so treated,'' but that is much more difficult to discuss because it refers not to consent to medical treatment, but to consent to being treated as the father. We will have similar debates, but it is more sensible to be specific about the consent to use of the sperm, which is effectively consent to paternity. It does not say in lines 26-28 on page 1 ``and provided he consented to being so treated''. It is put in the negative. I should like some explanation as to why that clause has been drafted in the negative—``unless it is shown that he did not consent'' rather than ``provided that he did consent''. Can I say to the hon. Member for Daventry that the reference to consent for being so treated, whether positive or negative, does not satisfy me in terms of the consent to obtaining of the gametes, as he acknowledged? That should not be used as an argument against these amendments.

The hon. Member for Northampton, South is in an awkward position, which, as sponsor of the amendment, I share, because if a hierarchy of things from the McLean report were to be implemented, consent should be higher than this issue. This issue will not go away: the children will be able to be registered if this is enacted next year. They will still be able to do it in two years' time because of the retrospective action, which is unlimited in terms of the recent past if the Government brings in a Bill.

The hon. Gentleman is right insofar as if there were a hierarchy in terms of the McLean report, those things would have been higher up the agenda. They are not. This is the opportunity to deal with points specifically relating to registration. Delay is important. Children of those mothers, such as Liam Blood, are now reaching an age where they are starting to question, and their mothers are trying to explain to them the circumstances in which their fathers died prior to their birth. At every stage of the Bill, including on Second Reading, we have said that there will be times in a child's life when he will want answers to such questions. For that reason, time is important; we want to place on statute as soon as possible the right for the father's name to be recorded on the birth certificate, to ease the passage of those children's lives. While I accept that the matter may not be a top priority, it is important for those children.

I understand the hon. Gentleman's point but I do not accept it. It is difficult for people in my position because our view might seem not to recognise the hurt and concern that exist around the case of, for example, Mrs. Blood. Given the fact that there was sympathy from the public and the media for the stance that she took from the start, it makes it more awkward. Nevertheless, I have a duty to say that I do not believe that the circumstances that he describes are so urgent that we should make that a higher priority than the issue of consent, for reasons that I am about to give.

It is difficult for me, as a third party, to comment on and question the motives and emotions of Mrs. Blood, who was so tragically bereaved. However, it could be argued that in similar cases the main issue is to describe to the child who his or her father was and what he was like as a person, rather than to hold out the importance of a piece of paper over the fundamental values that might be put across to the child in terms of his or her inheritance. One's inheritance comes from an individual's personality, not from a piece of paper and legal recognition. Clearly, in Mrs. Blood's case, that is important, but I do not believe that her difficult and stressful case should be the basis of a law that clearly has shortcomings.

If we cannot make progress because those in either House who share my view cannot be satisfied, the Government will have an opportunity during the next Session to introduce a larger Bill, which could deal with a series of issues, including the McLean report. I have received no answer to my question about the context in which these things will be done, and it seems likely that there will be other situations in which the issue of the right to reproduce after the incapacity of a husband or partner will arise. Again, that is referred to in the McLean report.

Section 2.8 says

``Although the reasons for maintaining the written consent requirement outweigh those in favour of change, other issues in respect of the regulation of assisted reproduction arose from the Consultation Document. The Court of Appeal's judgement in the case of R v. Human Fertilisation and Embryology Authority ex parte Dianne Blood was based in part on the expectation that such a case would not arise in the future. However, since the judgement was made, the HFEA has been approached on a number of occasions by doctors seeking advice as to whether or not they may lawfully remove gametes in precisely the same factual circumstances. That this is so may be the result of a misunderstanding of what the Court of Appeal's judgement actually said''— in that it asked the HFEA to reconsider its discretion on the export, but did not make a ruling to overturn the High court judgment on the lawfulness of the removal of the gametes—

``but it also reflects the reality that, were the common law requirement for consent to be developed, such cases would arise in the future. In the US, where infertility treatment is barely regulated, one survey has shown that 14 of 273 fertility clinics in the US and Canada had taken sperm from a total of 25 dead men. Moreover, it was also found that demand is rising: between 1980 and 1994 the clinics reported 39 requests for the procedure, while in 1995 alone there were 43 requests. It is of interest that New York State is currently considering a Bill which would require prior written consent to be given before sperm could lawfully be removed from a dead man.

Whatever the reason for this increased demand, it is a trend which may be echoed in the UK, and it may extend to men who are comatose and dying as well as to those who are already dead.''

It seems to me that there is potential for more than just an isolated case. As I have already said, I am content for Mrs. Blood's requirements to be met without sending out a signal or legislating for the future.

The Bill is flawed in the way that I have already mentioned, and the Government will have the opportunity to introduce their own law. I accept that the removal of sperm is a matter of common law, but it is law. The fact that the 1990 Act is statute law, which does not cover the removal of sperm, does not mean that any subsequent development of the 1990 Act—I do not share the view of the hon. Member for Northampton, South on this—should not take into account subsequent interpretations of common law and expert advice on how the law should be developed. Indeed, my understanding is that the Government are being asked to consider, post Alder Hey, that the common law basis of medical consent should be put on a statutory basis. The approach that one thing is covered by statute law and another by common law, and never the twain shall meet in the development of statute law, is liable to be thrown off by that approach.

I am concerned that there will be circumstances in which sperm obtained from comatose men—without, necessarily, a major medical intervention through more orthodox means of generating sperm—could be taken, without the consent of the man, and used abroad. My other amendments seek clarification, which I have not yet received, on why, in some circumstances, the measures apply only where a licence is given in the UK, but in other circumstances, they apply any time, any place, anywhere.

Does the hon. Gentleman accept that it would be wrong for us to pore over the reasons why definitions are so worded in the 1990 Act? If we are to be successful in affording the same rights to cases where the father is deceased as to where the father is alive, anything other than a direct reflection of the 1990 Act would lead to even more debate about the difference between the two laws.

I take the point that there seems to be an irrational allocation of restrictions in the four cases that we are discussing in the 1990 Act. I would be grateful for the references, because I do not believe that it is always necessary for new legislation to mirror previous legislation—that would be a wrong step for the House to take—especially when one has not received an explanation for why the original legislation was framed in a certain way. To assist hon. Members, I am now dealing with amendments Nos. 5 to 7, 9 to 12, 14 and 15.

It is not clear why the original Act states—if it does, because I have not checked it—that in case A, of a married woman who is seeking to use her husband's sperm, the procedure can be carried out anywhere in the UK without a licence or anywhere abroad, but that, in case B, in new subsection (5B), where the woman is not married and is using her partner's sperm, the procedure requires a licence if it is carried out in the UK but can be carried out abroad, where, by definition, a UK licence does not apply. It is also unclear why, in the third case, in new subsection (5C), of a married woman who is being treated with her husband and using donor sperm, presumably for reasons of the husband's infertility, the procedure can be carried out anywhere in the UK, with or without the licence—unless the law is broken in another way—or anywhere abroad. In the case set out in new subsection (5D), of an unmarried woman who is being treated with her partner and using donor sperm, the procedure can be carried out only with a UK licence and there seems to be a ban on treatment abroad.

That is most mysterious. I have considered the matter carefully and asked others with more knowledge of the history of the Act to consider the matter carefully, but they cannot give me a reasonable explanation, unless, as the hon. Member for Northampton, South suggested, the idea is to mirror the original provisions. It appears that if the woman is married, the procedure can be carried out anywhere, whether or not the husband's sperm is being used, but if the woman is unmarried, the procedure can be carried out with a UK licence or overseas if she is using her partner's sperm, but only in the UK where she is using donor sperm.That requires some explanation because we need to know the basis on which we are legislating. We should not allow the Bill to proceed unless the reasons for that are understood.

It is also important to ask why new subsections (5A) and (5B) cover artificial insemination by husband or partner, whereas in new subsections (5C) or (5D), where donor sperm is involved, artificial insemination by donor is not covered. How on earth can new subsection (5A), paragraph (a), line 9, state ``or her artificial insemination'', and paragraph (b) relate only to the creation of the embryo, when the definition under the 1990 Act refers only to the ex vivo creation of an embryo?

I quote from page 1 of the 1990 Act. Section 1(2)(a) states:

``(a) references to embryos the creation of which was brought about in vitro (in their application to those where fertilisation is complete) are to those where fertilisation began outside the human body whether or not it was completed there, and

(b) references to embryos taken from a woman do not include embryos whose creation was brought about in vitro.''

I believe, and the matter may be explored when we discuss an amendment not selected for today, that the Bill not only contains inconsistencies but has been incompetently drafted. One cannot have a situation in which

``a child has been carried by a woman''

as a result of artificial insemination and—it is an ``and'', not an ``or''—

``the creation of the embryo''

carried by her was

``brought about'' and so on and so on. It is, it seems, simply an error that needs to be corrected.

I have two further points to make in reply to the response that I have already had from the promoter of the Bill, the hon. Member for Northampton, South. His main argument is that if an unlawful act occurred, those who carried it out should bear the consequences. Such sanctions as exist should not be meted out to the victims of the offence. That is a neat argument, but the 1990 Act requires people undergoing treatment to behave responsibly and reasonably. It requires people who are seeking treatment—we are talking about the creation of life, so it is a very sensitive matter—not to be reckless about whether their treatment is within the law, and it states that consent is required.

The hon. Gentleman's argument implies that it is a matter merely of rogue doctors and that unlawful treatment would occur despite the best endeavours of a mother to ensure that everything was done by the book. That implies that such treatment occurs only when rogue doctors behave unreasonably. However, we know that people are desperate with regard to these treatments and will often seek treatment outside the law. The Minister herself has spoken clearly on the need to frame legislation on reproductive cloning, because it is important to set an example to other people and to encourage other countries to be rigorous in regulating it.

In the private sector, wealthy and desperate people may well be willing to hand over money to get the desired outcome with less regard than they should have to consent. It is wrong to put the responsibility on people who are already behaving in a rogue way. As we saw in the Diane Blood case, some people are so desperate that they campaign long and hard to achieve a change in the law. Other people may be less scrupulous and less well intentioned and have less basis than Mrs. Blood had for believing that consent has been obtained, and they may try to find ways of achieving the outcome that they desire. The Bill is the first amendment to the 1990 Act by statute rather than regulation, and it is wrong to signal that the issue is not important by rejecting my amendment. People who donate gametes require us to give their views high priority.

The question was raised of whether there was a conflict between the UN convention on the rights of the child and what we are seeking to do. I cannot find the exact phraseology from the McLean report that I mentioned, and I apologise for that. However, I have certainly seen it stated, in terms, that our having signed the UN convention on the rights of the child, with respect to recognising the child's right to a father, should not be interpreted to mean that a birth certificate with a father's name should be given even if that tramples on the equal right, established under several conventions, for people to have autonomy in the use of their sperm. Perhaps we shall be able to explore that argument later.

I am conscious that we are short of time, but I want to emphasise what is set out in the McLean report at section 2.9:

``While it can be assumed that maintenance of the current common law position in respect of consent should preclude the removal of gametes from the incompetent or the dead, particularly where the question of sanctions has been clarified, it clearly cannot be guaranteed. It is even possible that media coverage of the case of R v. Human Fertilisation and Embryology Authority ex parte Diane Blood could encourage some people into ignoring the legal position because they misunderstand the legal effect of that decision. The question before the court was not whether the removal of gametes had been lawful but whether the decision taken by the Human Fertilisation and Embryology Authority to refuse to make a Direction permitting export was a lawful one. The Court of Appeal was principally required to consider the European guarantees concerning free movement within Europe for the provision of medical services. In the light of earlier comments, it is clear that it is entirely in line with European Law that states can regulate to protect genuine moral and cultural issues. One such issue might be the written consent requirement in the legislation, for the reasons outlined above. However, if regulation based on sound policy considerations could be circumvented by the exercise by the Human Fertilisation and Embryology Authority of its discretion under s.24(4) of the legislation, both policy and the legislative control of assisted reproduction could be undermined.

It is thus recommended that s.24(4) of the Human Fertilisation and Embryology Act 1990 be amended to make it clear that the HFEA's discretion cannot extend to the authorisation of the export of gametes which were unlawfully obtained.''

The Government have accepted that we should try, in future legislation, to curb what can be done with, or as a result of the use of, unlawfully obtained gametes. I cannot see much difference—indeed, export is probably less important than paternity; it may not necessarily lead to paternity. I cannot see how the Government can justify supporting a Bill that would, under the 1990 Act, allow greater rights to be accrued in the small minority of cases where gametes were unlawfully obtained.

I am unconvinced by what the Bill's promoter has argued so far, at least with respect to my suggested compromise of framing the measure to permit retrospective effect even when gametes had been obtained unlawfully—which would satisfy Mrs. Blood and those affected by other cases that might emerge, since who knows what may have happened overseas, involving British citizens—but not to allow the same to happen in the future. We must be robust and are advised that we must be robust. I would therefore be unwilling to let amendments Nos. 7, 10, 13 and 16 drop at this stage. I may want to return to the relevant matters later.

Amendments Nos. 5, 6, 9 to 12, 14 and 15 give the hon. Member for Northampton, South or the Government an opportunity to explain their desired state of affairs. Mere reference to the mirroring of an irrational approach in the 1990 Act will not be satisfactory. An explanation of the rational nature of what is set out is needed, or the hon. Gentleman should attempt to make matters rational, at least in one respect. I know that there are limits to what can be achieved in a private Member's Bill, and that he drafted his Bill as a mirror, to make it as simple as possible so that it could make progress. He was fortunate indeed, given his position in the ballot, and there, but for the grace of God, go all of us. I congratulate him on his tenacity in getting the Bill to this point. Nevertheless, simplicity should not be used as an excuse for lack of clarity.

I am concerned that sperm may be obtained by theft of the post-coital contents of a condom and taken abroad to be used. It appears that sometimes such events could, if the person concerned was already being treated, mean that paternity could be entered on a birth certificate. That would perhaps be unusual, but desperate people might, out of desperation or malice, want that to be the law. We know from High Court cases and judgments that private practitioners who run IVF businesses will want to push the boundaries as far as they can, using export as a way around the problems.

The McLean report was very clear about the discretion over export, and it appears that there would in some circumstances be carte blanche for export of even unlawfully obtained sperm. I think that it must be accepted that that would be a consequence of the Bill. Because of that, I will need detailed explanation before I can be satisfied on the matter of the relevant amendments.

Dealing first with the last point made by the hon. Member for Oxford, West and Abingdon, removal of sperm without consent would constitute battery under criminal law. It could give rise to civil action on the part of the person concerned. I hope that that suggests to the hon. Gentleman that such acts need not go unpunished.

I believe that the McLean report points out the shortcomings of those provisions. Dead men cannot sue for negligence and men who do not recover cannot be party to criminal prosecution. Sheila McLean draws attention to questions about the adequacy of that approach, which others have raised too. Would prosecutions really take place, without the person whose rights had been breached to bring them or to co-operate in bringing them?

I accept the hon. Gentleman's concerns, although in those rare cases involving sperm from someone no longer living that had been taken without consent, there would still be no rights of succession or inheritance. The type of action in question would arise only in a narrow set of circumstances.

I shall try to deal quickly with the hon. Gentleman's arguments, without leading him to feel that they have not been adequately answered. Amendment No. 5 would prevent registration of a woman's late husband as father of a child where treatment—artificial insemination using the late husband's sperm or implantation of an embryo created using his sperm—took place outside the United Kingdom. The amendment would also prevent registration if any such treatment was provided in the United Kingdom by a person not licensed to do so.

Proposed new subsection (5A) does not specify where the treatment concerned should take place. That is because there is no equivalent provision in the 1990 Act and because of the common law presumption about the child of a marriage—that the husband is the legal father of the child. The presumption may be rebutted, of course. The amendment would therefore distinguish between cases in which the father was alive and those in which he was dead. Men who were alive would be presumed to be the father wherever the treatment took place. However, in cases where the father was dead, the treatment leading to conception would have to have taken place in the United Kingdom.

The 1990 Act provides that a person who without a licence provides treatment governed by the Act commits a criminal offence punishable by imprisonment, a fine or both. As I have said, the sanction should be applied against the practitioner rather than the woman carrying the child. The woman would, as previously stated, bear the additional burden of having to produce evidence as to whether the person carrying out the treatment possessed a licence. That burden is not placed on a married woman whose husband is still alive. It would be a further instance of a distinction being drawn between circumstances in which the father was alive and those in which he was not. That is not proportionate given that, where the husband is alive, his registration as father will provide evidence of legal rights for the child in respect of succession and inheritance. The Bill does not provide any such rights; it simply allows the man's name to go on the birth register.

Amendment No. 6 would prevent the registration of a woman's late husband as the father where artificial insemination using his sperm or implantation of the embryo created using his sperm takes place in the UK but is undertaken by a person who is not licensed. That is not proportionate given that, where the husband is alive, his registration as father again provides evidence of legal rights for succession. Again, it draws a distinction between the father who is alive and the father who is not.

Amendment No. 8 deals with treatment services in the UK. It would be illegal to offer such services in the UK without a licence. It is necessary to ensure that, if treatment takes place in the UK, the person carrying out the treatment has the necessary licence. The hon. Gentleman raised questions about the differences between new subsections (5A), (5B), (5C) and (5D). New subsections (5C) and (5D) do not cover artificial insemination; they refer to the use of donor sperm. If a woman uses donor sperm after the partner's death, how can it be said that the man intended to be the father? That reflects the provision in the 1990 Act. If donor sperm is used, it can only be used before the man's death to create an embryo. That is an important distinction in respect of the points that the hon. Gentleman has made.

The hon. Gentleman asked why, particularly in new subsection (5D), there are limits to treatments provided by a person to whom a licence applies. The 1990 Act has a tougher regime in respect of cases where the parties are unmarried and donor sperm is used. The treatment must be provided in a licensed clinic and treatment must be provided to the woman and man together. That provides an additional safeguard as to the intent of both parties in respect of the bringing about of that child.

Is the hon. Gentleman comfortable with that discrimination against long-standing partnerships where there is not a marriage certificate?

I am comfortable with the safeguard. I do not think that it is discrimination because it allows the father's name to be placed on the birth certificate, but it provides an additional safeguard. However, I say openly that if the hon. Gentleman feels that the matter warrants wider discussion or debate—perhaps a total rethink and overhaul of the 1990 Act—that would be the place in which to make any such amendments. If he makes them at this stage, we discriminate and create a difference between the cases of mothers who have children by deceased fathers, and those who have children through donor sperm or artificial insemination through live fathers. The most important point is that the amendments create discrimination in respect of cases where the father is deceased.

May I help the hon. Gentleman, because I know that we are running short of time? I understand the points that he makes about amendments Nos. 5 and 6, and those about amendments Nos. 14 and 15. However, I do not follow why amendment No. 8 or No. 9 should not be acceptable. While he has adequately explained why artificial insemination by donor is not covered in new subsection (5C) or (5D), I really want to know why artificial insemination by husband or donor is covered in new subsections (5A) and (5B), and how that fits with the creation of an embryo.

I am grateful to the hon. Gentleman for raising those points about amendment No. 9. The purpose of the Bill is to extend the provisions allowing birth registration to those few cases where the man has died and his partner subsequently conceives a child. In those cases, the law would have regarded the man as the child's father had he lived. If the amendment were accepted, it would defeat the purpose of the Bill because it would exclude couples who had started infertility treatment by storing sperm abroad. That is the valid point: there are cases in which infertility treatment has started, perhaps abroad, but is carried on after the father is deceased.

I am not sure whether that is the same line of argument that the hon. Gentleman used to explain why amendments Nos. 5 and 6 would remove the mirroring of the 1990 Act. He explained the basis for the provision allowing procedures to be undertaken anywhere when one is married and mentioned the relevant presumption. He also explained the extra requirements that are needed when people are not married and donor sperm is involved. However, will he clarify whether the terminology in new subsection (5B), which applies to a UK licence or outside the UK, is the original wording? I also invite the hon. Gentleman to deal again with why artificial insemination by husband or partner is included at all. How does that fit in with meeting the requirement for the creation of an embryo, which the 1990 Act defines as the ex vivo creation of an embryo?

It is the original wording from the 1990 Act, but we cannot deny that different circumstances would prevail and that the father would have died while the treatment was being undertaken. It might help the hon. Gentleman to know that the wording of the four new subsections, (5A), (5B), (5C) and (5D), reflects exactly that in the 1990 Act. However different circumstances will be involved because of the death of one of the parties to the agreement during the treatment.

For the fourth time, I invite the hon. Gentleman or someone else to explain why new subsections (5A) and (5B) refer to artificial insemination. I know why new subsections (5C) and (5D) do not. Furthermore, how is that consistent with the requirement that an embryo be created? Under the terms of the 1990 Act, that refers to an act outside the body, whereas artificial insemination will cause an embryo to be created inside the body and is, therefore, inconsistent with the first four words of page 1, line 11.

It might be best for me to write to the hon. Gentleman about his detailed question, although not his question about new subsections (5A) and (5B), and answer in more detail. My understanding is that new subsections (5A), (5B), (5C) and (5D) try to cover all the variations of IVF and infertility treatment that married and unmarried couples could undertake in and outside the UK. If the hon. Gentleman identifies a fault in the original Act, that should, with respect, be dealt with under a wider reform of the 1990 Act. That should not concern us as we try to bring couples in which the father is deceased into line with the rights afforded to children—we are talking about the rights of children—who are born when the father is deceased.

Although I respect the reasoning behind the hon. Gentleman's amendments, they raise matters that relate more to a wider reform of the 1990 Act than to the narrow scope of the Bill. I therefore respectfully ask him not to press them.

I note that the Minister is not rising to speak, so I will sum up on the amendments.

On amendments Nos. 5, 6, 9, 8, 11, 12, 14 and 15, I understand the hon. Gentleman's point. I am concerned about two areas, although I agree that we do not have to go into them at any greater length now. I would be far more reassured about what will go on abroad if we could have a provision to ensure, at least in future, that consent and the removal and storage of gametes is lawful up to the point where it relates to this country.

We must try to satisfy ourselves on the issue of lawful consent where these things are undertaken abroad. However, we are making UK law, and the registration of the father on the birth certificate pertains to the UK. It is not clear that we should necessarily change our laws on the registration of births to fit in with practices that may be wholly unacceptable to us—

Order. The hon. Gentleman is becoming somewhat repetitious. I would be grateful if he brought his remarks to a close.

I apologise. I take your point, Mr. Sayeed.

In that respect, concerns remain to be answered. It has not been made clear to me why donor sperm can be used in the UK only when the couple are not married but anywhere—not just in the UK, but overseas—when they are. The protections that are required when donor sperm is used should not be completely done away with simply on production of a marriage certificate. Very quick marriages may occur, designed to circumvent restrictions in this area. That must be explored at greater length.

It is reasonable, during the Committee stage of the Bill, to request an explanation of the point that I raised about the inclusion of artificial insemination. It is unfortunate that I am going to be asked whether I wish to press my amendments in the absence of such an explanation, despite the assistance available to the Minister. Nevertheless, I look forward to that explanation.

As I have made clear, I am not satisfied by the undertakings that I have been given and it may be that the Human Fertilisation and Embryology Authority would not be satisfied in relation to amendments Nos. 7, 10, 13 and 16. For that reason I intend to seek to test the opinion of the Committee on amendment No. 7 only, and not on amendment No. 5. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 7, in page 1, line 28, at end insert—

`, and provided that the obtaining of the sperm was lawful, and that the storage, if any, and treatment were lawful under this Act.'.

Question put, That the amendment be made:—

The Committee divided: Ayes 1, Noes 6.

Question accordingly negatived.

I beg to move amendment No. 1, in page 3, line 18, at end insert—

`(5DD) In the application of subsections (5A) to (5D) above to Scotland, for any reference to a period of 42 days there shall be substituted a reference to a period of 21 days.

(5DE) The requirement under subsection (5A), (5B), (5C) or (5D) above to elect within a period of 42 days or (as the case may be) 21 days shall be treated as satisfied if the required election is made outside that period but with the consent of the Registrar General under subsection (5DF) below.

(5DF) The Registrar General may at any time consent to the making of an election outside the required period if, on an application made to him in accordance with such requirements as he may specify, he is satisfied that there is a compelling reason for giving his consent to the making of such an election.

(5DG) In subsections (5DE) and (5DF) above ``the Registrar General'' means the Registrar General for England and Wales, the Registrar General of Births, Deaths and Marriages for Scotland or (as the case may be) the Registrar General for Northern Ireland.'.

The amendment is a simple change to the Bill that recognises the difference in registration legislation between England and Wales and Scotland. Proposed new subsection (5DD) substitutes a reference to a period of 21 days for registration of births in Scotland. That will make the time limit in the Bill for registering births in Scotland consistent with existing legislation. Likewise, proposed new subsection (5DE) will enable one to make an election outside the 42-day period in England, Wales or Northern Ireland—or the 21-day period in Scotland—with the consent of the Registrar-General. That will allow the Registrar-General some discretion. Under proposed new subsection (5DF), the Registrar-General may consent to the making of an election outside that period if he is satisfied that there is a compelling reason for him to do so. Proposed new subsection (5DG) defines the Registrar-General.

In essence, we are trying to ensure that the Bill is consistent with the existing legislation of England, Wales, Northern Ireland and Scotland but also gives the Registrar-General discretion, so that where the mother has not applied within the set time, he may still use his discretion to allow the registration to take place.

May I clarify—the hon. Gentleman may have been stating this, although not in terms—whether without proposed new subsections (5DF) and (5DE), no retrospection would be available? By definition, such cases would fall outside the 42 or 21-day period. Is the amendment to provide not only for Scotland but a for mechanism by which retrospective cases may be considered, as they will almost inevitably occur hundreds or thousands of days after the birth?

If it is helpful to the hon. Gentleman, there are separate circumstances for retrospective applications, which may be registered within three months of the Act coming into force—or longer, with the consent of the Registrar-General. That provision is not the same as the amendment, which relates to the difference in legislation for Scotland and Northern Ireland, England and Wales. The 90-day rule for retrospective applications will still be in force following the Bill's enactment.

Does the discretion to go beyond the 42 or 21-day limit concern cases where the woman is incapacitated after birth by medical problems, and will therefore not have had an opportunity to register, or does the hon. Gentleman envisage other circumstances?

The circumstances that the hon. Gentleman mentions will be usual. The reason for the difference between the 42 and 21 days is simply the difference in law between the Acts. In all cases, the Registrar-General's discretion can be used for the purpose that the hon. Gentleman mentions and other purposes, if he feels that to be reasonable.

Amendment agreed to.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 1, as amended, ordered to stand part of the Bill.