§ 3.7 p.m.
The Lord Chancellor
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE CHAIRMAN OF COMMITTEES in the Chair].
§ Clause 13 [Conditions of licences for treatment]:
§ Viscount Caldecote moved Amendment No. 81:
§ Page 6, leave out line 12 and insert ("(2) Information shall be recorded in such form as the Authority may specify in").
The noble Viscount said: This is a small but quite important drafting amendment in the interest of the strict regulation of the licences provided under this Bill. As drafted at present, the authority could specify that it required no information to be given under one or more of the headings in Clause 13(2)(a) to (e). The amendment makes clear that:
Information shall be recorded in such form as the Authority may specify in directions".
§ I believe this is what was intended in the draftng of the Bill. It is certainly more precise. I beg to move.
The Lord Chancellor
This amendment would have the effect of making it a condition of all licences that information had to be recorded, in a manner laid down by the authority, on treatment services set out in Clause 13(2): (a) the persons for whom treatment services are provided; (b) the treatment services provided for them; (c) the persons whose gametes are kept or used for the purpose of treatment services provided under licence or whose gametes have been used to create embryos kept or used for treatment services of this kind; (d) any child appearing to "the person responsible" to have been born as a result of licensed treatment; and (e) any mixing of egg and sperm, any taking of any embryo from a woman, and any other acquisition of any embryo.
The amendment would give the authority the power to prescribe the manner in which information was recorded, but it would remove from the authority the discretion to decide what information it wanted recorded. The Government accept that there may be good reasons for specifying the form in which information should be recorded, but would wish to assure themselves that this would not lead to unnecessary bureaucracy or remove flexibility and discretion from the authority.
1252 Therefore, if my noble friend is prepared to allow me this opportunity, I should like to study this amendment further with a view to bringing forward a government amendment at a later stage in the proceedings to deal with at least some of the matters covered in this amendment.
§ Viscount Caldecote
I am most grateful to my noble and learned friend the Lord Chancellor. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lady Saltoun of Abernethy moved Amendment No. 82:
Page 6, line 24, at end insert —
(", provided that the information specified by the Authority under this subsection is sufficient to identify unequivocally all of the persons mentioned in subsections (2)(a) to (2)(e) above.").
§ The noble Lady said: Amendments Nos. 82, 83, 87, 134, 136, 145 to 149, 151 and 153 are all ancillary to Amendments Nos. 138 to 141, the purpose of which is to clarify and strengthen Clause 28(3). This clause, the wording of which is taken from the Legitimacy Act 1976, is designed to prevent donor children from succeeding to hereditary dignities such as peerages, baronetcies, and so on, which were generally limited by the monarch who created them to heirs of the body and usually to heirs male of the body. It is unclear whether it would cover the inheritance of coats of arms or property limited to devolve with dignities or titles of honour. In any event, the Legitimacy Act 1976 is an English Act.
§ It was clearly thought by the drafters of that Act that the words "title, honour or dignity" would not include coats of arms. That being so, and coats of arms having been specifically included in that Act, not to specify them in this Bill would possibly have the effect of excluding them, particularly in Scotland. At best there could be doubt as to whether they were or were not included until a judicial decision had clarified the position.
§ Amendments Nos. 138, 139 and 140 in my name and in the names of the noble Lord, Lord Teviot, and the noble Duke, the Duke of Norfolk, are designed to remedy the situation in England and Wales by amending Clause 28(3). They have the approval of Garter King of Arms. Amendment No. 141 in my name and in the names of the noble Lord, Lord Teviot, the noble and learned Lord, Lord Jauncey, and the noble Viscount, Lord Oxfuird, is designed to do the same for Scotland by adding a new subsection (4) to the clause, and has the approval of the Lord Lyon King of Arms. Perhaps I may just say how sorry we all are that an accident has prevented the noble Viscount, Lord Oxfuird, being here today and how glad we all are to hear that he and his wife are making a good recovery from their injuries.
§ Lady Saltoun of Abernethy
The inheritance of coats of arms is important in any country, but in 1253 Scotland it has a very special importance because of the clan system. The chief of the clan is the person who is the holder of the plain arms of the name. The whole concept of the clan is that of an extended family all of whom are, theoretically at least, blood relations of the chief. It is this sense of kinship to him which binds the clan together. If the chief is a fraud and not himself of the blood it makes nonsense of the whole clan system.
I do not know how many hundreds of thousands of expatriate Scots there are in the world who at least once and sometimes frequently in their lives visit Scotland in order to meet their cousin, the chief, and discover their roots. A great many do so. Quite apart from that, the clan system is part of the social structure of Scotland and a very important part to the Scots who have historically been divided vertically into clans. I should hate to see this undermined, and many Scots in or out of Scotland would too.
In Scotland we have rather more hereditary offices of state than in England —five as opposed to two. We have the Lord High Constable (the Earl of Erroll); Hereditary Banner Bearer (the Earl of Dundee); Hereditary Bearer of St. Andrew's Flag (the Earl of Lauderdale); Hereditary Master of the Household (the Duke of Argyll) and Hereditary Keeper of the Palace of Holyrood House (the Duke of Hamilton). It is doubtful whether the clause as worded at present would cover the succession to those offices, so that, for example, it could come to pass that the office of Lord High Constable became separated from the Earldom of Erroll. Similarly, in England, the office of Earl Marshal could become separated from the Dukedom of Norfolk. Perhaps the noble Duke himself will have something to say about that. I regret to say that I do not see the noble Earl, Lord Erroll in his place. I hope that this will have made the object of these amendments and the reasonng behind them clear to the Committee.
I turn now to Amendments Nos. 82, 83, 87, 145 to 149, 151 and 153. Neither the amendments I have just explained nor Clause 28(3) as it stands can work unless adequate records are kept of children born as a result of eggs or sperm donation or both. Access to those records is available to persons who may have a genuine need to obtain it. Amendment No. 82 aims to ensure that the records kept on all such births after the Act comes into force are adequate. Amendment No. 87 aims to ensure that all existing records of such births as took place before the Act comes into force are preserved. Amendments No. 145 to 149, 151 and 153 are to ensure that persons with a genuine need to obtain access to the records can obtain them. Amendments Nos. 134 and 136 are paving amendments. I beg to move.
§ 3.15 p.m.
§ Lord Teviot
It is my great pleasure and privilege to follow the noble Lady, Lady Saltoun, whose amendments are mostly in our joint names, and to congratulate her on a most excellent, succinct and lucid speech in which she set out so eloquently our purpose in seeking to amend Clause 28(3), together with our enforcing ancillary amendments. In order to eliminate any confusion we have purposely split 1254 our amendments into two groupings. The first group contains those amendments based on Clause 28(3) which deal with hereditary titles, honours and coats of arms; and, secondly, those on Clauses 26 and 27 dealing with birth certificates. The issues are separate but closely interlinked and some apply to both points. It is my job to explain the finer points of those enforcing amendments. Without the main amendment they would not stand up on their own. I apologise to the Committee if I am less than brief, but the amendments have to be explained.
Amendment No. 82 seeks to amend Clause 13. As presently worded, Clause 13(2) fails to make clear how much information about the people involved the authority will insist upon having recorded. All it says is that the information to be recorded is such as the authority may specify. This leaves the authority the freedom to specify that only non-identifying information about the donors of sperm, eggs or gametes need be recorded. It should not have that freedom. The amendment is intended to make it quite clear that sufficient identifying particulars of all the participants involved, including the donor, must be maintained as a condition of the licences. The parties must be identified, as the amendment says, unequivocally, so there is not the slightest possibility of confusion; for example, with other persons of the same name.
Amendment No. 83 seeks to amend Clause 13(4). The present wording is not clear. It allows information to be destroyed, or at least removed from any records, after a specified period. On no account must that be allowed to happen, at least in those cases where activities under a licence have led to the birth of a child. The amendment therefore would prevent any information which identifies children and their genetic parents from being destroyed at any time. Indeed, so that there is no doubt that the records are preserved, the amendment goes beyond that and provides that they shall be retained for 115 years from the date of birth of the child. After that date it provides that they shall become public records. I should perhaps explain here that that period of 115 years has nothing to do with the Public Records Act. The Guinness Book of Records tells us what might be the age of the oldest male or female, but I think that 115 is the maximum lifespan.
§ Lord Teviot
Therefore it seems only fair that at some point in time the organisations acquiring the licences should be relieved of their duty of looking after the records, and that the state should take up the duty in the interests of the community at large; but that that time should be postponed until all children born will have died. The effect of the transfer would enable the records to be open to inspection under the Public Records Act. Remote generations and descendants and interested historians would then have access to any of the information which has been recorded.
I turn now to Amendment No. 87 which introduces a new clause. Clause 13 only applies to 1255 licences for future activities after the Act has come into operation. However, there are said to be several thousand children already born by the techniques the licensing of which is covered by the Bill. It is vitally important that some effort should be made to record centrally and preserve for posterity details of the genetic parentage of those children, so that at the very least they too, and others born in recent years, will be able to apply for confirmation that they are not about to marry their brother or sister.
In Clause 29(3) and (4) the Government rightly recognise the need to reassure persons who fear that they may be committing incest, but exactly the same fear confronts anyone born as a result of sperm or embryo donation before the Act comes into operation. I appreciate that I may be accused of trying to introduce retrospective legislation. But the amendment has been framed so as to impose the minimum amount of retrospection in its attempt to gather information about at least some of these children. If the Government accept the principle that some records may be created and maintained about such children, but see some alternative means of doing so, I would not wish to insist upon the exact method envisaged by the amendment.
I move on now to the core amendments—namely, Amendments Nos. 138 to 141 —where I have little to add to the remarks of the noble Lady, Lady Saltoun. As I said before, she made her points very clearly. However, I must emphasise that if we are to have hereditary titles then they must go to the right person. Perhaps I may take issue slightly with her where she says that the Scots are divided vertically into clans, whereas the English are divided horizontally into classes.
As regards my pedigree, without making too fine a point, I am probably at least between five-eighths and eleven-sixteenths Scottish. I must say that while I very much enjoy visiting Scotland, I have always lived in England. Moreover, while there is nothing like the clan sentiment in England, there is a very large growing family element in all walks of life all over the country. I shall return later to the increasing role of genealogy when we debate further amendments as regards Clauses 26 and 27.
I should warn Members of the Committee that it will be some while yet before I sit down. I should perhaps now explain further the need for amendments to Clause 29. Amendments Nos. 144 and 145 are self-explanatory and Amendments Nos. 147 and 148 are consequential and need little explanation. However, Amendments Nos. 146, 149, 151 and 153 require further explanation.
Amendment No. 146 seeks to extend the classes of people about whom an applicant can request information under the Act. The amendment first proposes that in all cases the children or more remote descendants of a person who may have been born as a result of sperm, egg or embryo donation will have the right to apply for information. Secondly, where a title or dignity is involved people who are in the line of succession will have that right in respect of persons earlier in the line of succession.
1256 There are, however, two important qualifications. In the second subsection applicants are prevented from asking for information about their living parents without their parents' consent. In the same way, those applicants who are not next in line of succession to a title may not apply for information about living persons earlier in the line of succession without their consent. The extension of the right to descendants of a person who may have been born as a result of such donation is intended to allow anyone who has, or may have, genes resulting from such donation to be able to inquire about them. That is important for medical reasons and also for those tracing their ancestry. The extension of the right to persons in line of succession to a title or dignity gives them an opportunity to contest the right of succession if they believe that it may not be passing or have passed to the rightful heir.
Amendment No. 151 deals with the information supplied to the next heir when it is a matter of succession to a title. It would seem that there is no need to indentify the genetic parents precisely to the next heir, but merely to say whether the apparent heir would be entitled to succeed to the title.
Amendment No. 153 allows for information to be supplied to two categories of persons other than the applicant. In the first instance (3A) where a title or dignity is involved that person would be the one charged to investigate the succession —a Crown Office official, or Garter, or Lord Lyon King of Arms. That is necessary to enable Clause 28(3) to be enforced, in the event that the person claiming to be the heir refuses to make an application under that clause.
In the second instance (3B), where medical problems are involved, that person would be a qualified doctor attending the applicant or a close relative, who needed the information for the medical care of the applicant or of the close relative. In such cases the person about whom the information is required may be quite unable to make the application. There are many illnesses which have a genetic cause, and there are instances where tissues are required for transplant and only a close genetic relative is able to provide them.
I think, perhaps, that I may have omitted to mention Amendment No. 149. I did have details with me to deal with the matter in regard to the next group of amendments. I must apologise to the Committee for this delay.
§ Lord Teviot
I am sorry about that. The situation reminds me of a similar one when Lord Elwyn-Jones said almost the same as has the noble Lord, Lord Ennals. He said that I was inaudible. At that time I was obliged to move my seat. However, I should like to speak to Amendment No. 149, if I can find my information. The order of my paperwork was changed because of the regrouping of the amendments. However, as I do not seem to have the relevant paperwork with me, perhaps I may use the information in connection with the next group of amendments. I think it is still apt in that respect. I see that my noble friend Lord Eden of Winton has 1257 found the information I need. I am most grateful to him and I apologise again to the Committee for delaying the proceedings.
Amendment No. 149 requires the authority to provide full identifying information about the genetic parent or parents and not the non-identifying information suggested at present. We believe that it is of paramount importance to every individual to be able to develop a proper sense of identity, and knowledge of his genetic parents is a vital factor in that development. One cannot limit the information to be made available to the adult offspring to information about the ethnic origin and genetic health of the donor, not even to a "pen picture" of the donor's social characteristics and family background. Information of that type is quite inadequate to enable the inquiring offspring to develop a sense of personal identity, which is why this is an important amendment. It is more likely to instil deep feeling over the lack of such identity.
It is now widely accepted that an adopted child needs to know that he or she is adopted. The adoption laws correctly give the adopted child the statutory right to discover the identity of its genetic parents. The children whom we are discussing, their children and the more remote descendants should have a statutory right. Such a right is what we propose here. The wording of the amendment limits the disclosure of information to the child itself and its direct descendants. It does not allow the disclosure to the brothers, sisters or other close relatives of the child, except in the sense of making inquiries, because such full disclosure will be made to the child at the age of 18. There is no need for the existing paragraph (b) of Clause 29(3) about the child's intended marriage partner.
I feel that noble Lords have listened to me long enough. The amendments have been explained in great detail and I look forward to the ensuing discussion.
§ 3.30 p.m.
§ Lord Jauncey of Tullichettle
Perhaps I may say a few words about Amendment No. 141 which stands in my name and two other amendments to which my noble friend Lady Saltoun has already referred. The purpose of Amendment No. 141 is simply to bring donor children into line with adopted children and those born out of wedlock in the law of succession in Scotland. The importance of succession to undifferenced coats of arms has already been stressed by my noble and learned friend. I only add to what she said that it is also important —
§ Lord Jauncey of Tullichettle
I have committed a solecism. I understand that I referred to the noble Lady as "learned" but she has demurred. I only add to what she said on undifferenced arms that they are of importance as well to the representors of great lowland families.
The importance of coats of arms to the law of Scotland has been recognised by the Government in 1258 1964 in the Succession (Scotland) Act in relation to adopted children where adopted children were excluded from succession to coats of arms of their adopted parents. It was recognised again in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 in relation to illegitimate children. It was recognised again in the Law Reform (Parent and Child) (Scotland) Act 1986 in relation to children born out of wedlock. These Acts all conferred certain rights of succession upon such children in the estates of their adoptive parents or their natural parents; but they excluded titles, dignities, and honours as well as coats of arms.
The new subsection (4)(a) to Clause 28 proposed under Amendment No. 141 simply repeats verbatim the relevant provisions of the 1964 Act and the 1986 Act. It therefore seems to me that the proposed amendment would achieve uniformity. If no amendment is made to Clause 28, then in my view —and here I differ from my noble friend Lady Saltoun —there would not be doubt that the coats of arms might be included; it would be almost certain that they would be excluded. That is because Parliament having on two previous occasions in Scottish legislation seen fit to mention them specifically, the natural assumption would be that if they were omitted altogether they were omitted intentionally.
Logically, in the event of Amendments Nos. 138 and 139 being accepted by the Government or agreed to, it seems probable that the first part of Amendment No. 141, subsection (4)(a), would become unnecessary. The question of coats of arms would be dealt with in Clause 28(3). That would apply not only to Scotland but to England and Wales.
With reference to subsection (4)(b), again this repeats verbatim Section 9(1)(d) of the 1986 Act to which I have already referred. On reflection I am bound to say that I do not think that it achieves a great deal. However, although Clauses 26 to 28 apply only to children "carried" —whatever that may mean —whether born, conceived or implanted after the commencement of the sections, nevertheless Clause 28(1) appears to apply to deeds or instruments which were executed prior to the coming into force of the Act.
Perhaps I may give a simple example. If A, having two sons, chooses to leave certain land or family possessions in trust to B in life rent; and C, and his eldest son unnamed in fee, he having another younger son, and that trust deed was executed prior to the passing of the Act, then a donor child of B would take, in preference to a child of C, albeit the trustor, had he known the situation, might very well have preferred that the natural child of his own blood, the grandchild of his own blood, should take, rather than someone who would probably be a stranger in blood to him.
I therefore ask the Government to consider whether it would be appropriate to introduce some transitional provision here restricting the application of Clause 28(1) to deeds taking effect after the coming into force of the statute. Once again there is precedent for such a provision in the 1964 Succession of Scotland Act, Section 23(4). There is precedent in Section 5(3) of the Legitimation 1259 (Scotland) Act 1968. It may be that there are similar provisions in the corresponding English Acts. I invite the Government seriously to consider whether it would be desirable to have some such transitional provision.
Perhaps I may say a brief word on Amendment No. 140 which is designed, as I understand it, to include not only an honour or dignity but property which is destined to descend with it. Once again, although the words are not identical, there is a precedent for this at least in Scotland in Section 23 of the Succession (Scotland) Act which seems to me to achieve a similar provision. Once again, if it is thought appropriate in relation to adopted children, perhaps it might also be thought appropriate to introduce a similar provision in relation to children such as these.
Finally, Amendment No. 146 is clearly needed in order to make Clause 28(3) work, in whatever form it may be. I commend the spirit, so far as it is comprehensible. I very much hope that I never have to construe the precise words of Amendment No. 146.
§ Lord Kennet
Before the noble and learned Lord comes to reply to the amendment, perhaps he could say a word to help the English. I have in mind particularly Amendment No. 152 further down the Marshalled List. Roughly speaking, it would give the right to any person conceived by IVF to know as much about his or her own identity as the state knows. If the noble and learned Lord, the Lord Chancellor, could help us, perhaps he would say whether this raft of amendments about Scottish peerages will have any effect on how we should consider Amendment No. 152 if the amendments we are discussing are passed. It would be extremely helpful. I have in mind the following question: is this perhaps the first occasion on which a basic human right has been urged in this House under the guise of an amendment to the law of succession to Scottish peerages, or is it only a small tidying up matter referring to Scottish Peerages?
§ Lord Prys-Davies
We have had a discussion on an odd mixture of about 16 amendments. There is not always a common theme among those 16 amendments. I am not surprised that the noble and learned Lord, Lord Jauncey, got his papers mixed up at one stage.
I wish to speak to Amendments Nos. 82, 83 and 87. As regards Amendment No. 82, it would be helpful if the noble Lord, Lord Teviot, would indicate in more precise terms the information to be specified in order to identify unequivocally the persons mentioned in the subsections referred to. I note that Amendment No. 143, tabled by the Government, refers to information about an identifiable individual whereas the amendment of the noble Lord, Lord Teviot, refers to information which is sufficient to identify persons unequivocally. Does anything turn on that distinction?
I had in my innocence assumed that Amendment No. 83 had something to do with the law of succession to hereditary titles. Having listened to the 1260 noble Lord and the noble Lady, Lady Saltoun, I am clearly wrong on that point. However, if that is the case I should have thought that the discussion on Amendment No. 83 would tie up with the discussion on Amendment No. 124 was misconceived as the period of 50 years referred to in the Bill would only be triggered off if the licence-holder did not know whether or not a child had been born as a result of the treatment. If the 50-year period is confined to that situation it appears to me that the Bill is acceptable and that outside those circumstances it would be for the licensing authority to determine for how long records should be held.
There is a factual error in the last line of Amendment No. 87. The reference should be to Section 13 and not to Section 12. However, that is the only help I can give to the noble Lord, Lord Teviot, on that amendment. The general rule, as I have always understood it, is that an Act of Parliament is not retrospective but prospective. Clearly, however, the object of this amendment is to make it retrospective.
I hope that the Committee will not go along with the amendment. It would impose a duty to supply and to disclose information about activities which may have been completed long before this legislation came into force and at a time when there was no duty to supply or disclose such information. The gametes may have been donated on the clear condition that they were given in secret and that that secret must remain a secret for life. Surely that is a fairly substantial right which should not be undermined by Amendment No. 87.
Amendment No. 150 addresses the issue of retrospectiveness. That amendment stands in my name and that of the noble Lord, Lord Henderson. However, there is a profound difference between Amendment No. 150 and Amendment No. 87. Although both amendments concern retrospectiveness, Amendment No. 150 asks the Committee to confirm that retrospectiveness will not apply. Amendment No. 87, however, tries to ensure that the information is to be disclosed even though it was given before the implementation of the legislation.
§ 3.45 p.m.
The Lord Chancellor
A number of issues are raised by these amendments. I should say at the outset that the noble Lord, Lord Kennet, is right to say that the amendments raise an important matter which goes far beyond any question about titles of honour or anything of that kind. I shall refer to that matter in the course of my remarks.
I shall try to deal with the amendments together to some extent. They seem to me to be founded on three main bases. First of all, they seek both in relation to the succession to titles and in relation to less exalted family circumstances to ensure that there is purity of the blood line and to ensure that there is full information about genetic parentage in relation to children born as a result of the techniques involving the donation of gametes which are to be licensed by the Bill. That is the important question which goes far beyond mere succession to titles.
Secondly, the amendments also seek to amend the provisions in Clauses 13, 29 and 31 of the Bill 1261 which deal with information which the authority is required to keep about licensed treatments. That information is to be made available to applicants under Clause 29 so that it shall be such as to identify the genetic origins of such a child. That is another aspect of that important generality. That is to be achieved through Amendments Nos. 126 and 129 by requiring that the social parents of the child shall be recorded as such in birth records which are to be maintained by the registrars general. In other words, on inspecting the register one will, according to these amendments, be able to see that the child whose birth is recorded in a particular entry was born as a result of one of the treatments.
Thirdly, the amendments seek to extend the exception already provided for in the Bill in Clause 28(3) which provides that the provisions in the Bill dealing with the status of parents, and children born as a result of infertility treatments regulated by the legislation, should not,affect the succession to any dignity or title of honour",to include succession to a coat of arms. That is the special point which has to some extent motivated these amendments.
The Committee knows well the unflagging interest in genealogy and titles of honour and dignity which the noble Lady, Lady Saltoun, and my noble friend Lord Teviot have displayed. It would ill behove someone who is concerned with the administration of justice in England and Wales, and indeed my right honourable friend the Secretary of State for Scotland and my noble and learned friend the Lord Advocate, who have responsibility for these matters north of the Border, to tangle in this connection with the chief of the Fraser clan. I am reliably informed that the forebears of the noble Lady, Lady Saltoun, have a distinguished and warlike history and that one of them, Sir Simon Fraser, filius was put to death in London in September 1306 by King Edward I, the "Hammer of the Scots," and that another met a somewhat similar fate after the Battle of Culloden. Simon, the 11th Lord Lovat, is reported to have declared that there was nothing he placed in balance with his kindred. I am sure he would have been proud of his descendant, the noble Lady, Lady Saltoun.
§ Lady Saltoun of Abernethy
I must tell the noble and learned Lord that I am not descended from that person and I do not think that anyone today is descended from him.
The Lord Chancellor
That illustrates the point I am seeking to make. In any event, whatever the history and the lineage aspects of this matter may be, I am sure that all of us appreciated the clarity with which the noble Lady has put this case. I think it would be right to say that this is extremely difficult territory. I am very much aware that there are strong arguments in relation to the welfare of children born as a result of donation. It is felt by some that a child born in these circumstances should be able to discover who his genetic parents were. I know this view is held by many organisations representing social work and adoption and fostering interests who make an analogy with the access to such information in the case of children who are adopted.
1262 The matter was dealt with in the consultation that the Government instituted in 1986. There was no unanimity on this important matter,. Only 22 per cent. of those responding felt that identifying information should be given to such children and 43 per cent. thought that the donor's name should not be given. Those included the main medical bodies who were concerned lest a provision of that kind would have a deleterious effect on the supply of donors who, in their strong opinion, would be unwilling to come forward because they would not wish 20 or more years later to be confronted with children who had been born as a result of their donation. The balance of 35 per cent. made no comment on the issue. As I said, this is a general issue of considerable importance. The Government have taken the view in the Bill that such identification should not be afforded. Information regarding genetic characteristics might be afforded but not information to identify the individual donor.
The Government have taken steps in the Family Law Reform Act 1987 and the Law Reform (Parent and Child) (Scotland) Act 1986 to remove such discriminatory labels as illegitimacy. It would be a pity to replace one label with another. There is a strong argument that marking a child's genetic origins on its birth certificate would be far from conclusive proof as to who the child's genetic father might be. That might well introduce a new kind of label which would not be satisfactory. That is a very important question and is distinct from the question of succession to coats of arms.
So far as concerns coats of arms I should like to assure the noble Lady, Lady Saltoun, my noble friend Lord Teviot and my noble and learned friend Lord Jauncey of Tullichettle that the Government take on board the questions that have been raised on that issue. In the light of the amendments that have been proposed and the discussion so far, it is our intention to bring forward amendments at Report stage to include what the noble Lady proposes in her amendments. The aim of the government amendments will be to bring the position regarding succession to coats of arms into line with the practice in illegitimacy and adoption cases in which changes to the normal descent of a coat of arms may be affected by a petition to the Sovereign for royal licence and authority.
I turn now to Amendments Nos. 140 and 141. The first is designed to ensure that property which is intended to devolve with a title of honour is not separated from it. As my noble friend Lady Hooper made clear in her closing speech in the Second Reading debate, that is not the Government's intention. I am therefore pleased to accept the spirit of the amendment in principle. We shall seek to bring forward government amendments at Report to deal with the matter.
I turn now to Amendment No. 141. Two issues are involved. The new subsection (4)(a) which the noble Lady, Lady Saltoun, has proposed ensures in relation to Scotland that the general inclusion at Clause 28(3) covering succession to any dignity or title of honour includes coats of arms. The effect is to embrace Scottish chieftainships and certain heritable offices such as those to which the noble 1263 Lady referred. The amendment which the noble Lady has proposed is identical to that in the Law Reform (Parent and Child) (Scotland) Act 1986. I have consulted my right honourable friend the Secretary of State for Scotland, who has responsibility for family law in Scotland. I understand that he is happy to accept the principle of that part of the amendment.
I turn now to paragraph (b) of the amendment. It is identical to the provision in Section 9(1)(d) of the Law Reform (Parent and Child) (Scotland) Act 1986. I recognise that, as has been explained, the intention is to achieve uniformity in such matters with regard to adopted children, children whose parents are not married to each other, and children who have been born following those infertility treatments to be regulated under the Bill. The Government have given considerable and careful consideration to whether such a provision would be desirable in respect of children born as a result of those treatments. We have concluded that there is a distinction to be drawn between legislation in respect of children who are born as a result of the treatments and those who have been born to parents who are not married to each other or who have been adopted.
Such a distinction has already been made in legislation applying to England and Wales which deals with succession in cases of illegitimacy and in the case of children born following donor insemination. Provisions in Sections 18 and 19 of the Family Law Reform Act 1987 in effect sweep aside the status of illegitimacy for the purpose of the law of succession and in a manner similar to Section 9(1)(d) of the Scottish Act of 1986.
The view taken was that it would have been unfair to apply the new law to wills made under the old system because there would be a risk that as a result of such change they would no longer reflect the testators' intentions regarding legitimacy, for example. However, no such qualification was made regarding children born following donor insemination where in effect a new status was being created. In that case the intention was to give children born to married couples as a result of AID the same succession rights as those enjoyed by children born as a result of natural conception, titles and the like being excepted. The section applied only to children born after the section came into force. To take the approach suggested in Amendment No. 141 would risk creating a situation in which a child born by natural conception stood to inherit from certain wills while his brother, born following donor insemination, did not. That would have raised questions of discrimination against children born by donor insemination, which that Act and this Bill seek to avoid.
I believe that there is an appropriate distinction to be made between children born as a result of infertility treatments, on the one hand, and children who are adopted or born to parents who are not married to each other, on the other.
§ Baroness Phillips
Before the noble and learned Lord leaves that point, perhaps he can explain why 1264 anyone would need to have a child by donor insemination if they already had one by natural conception.
The Lord Chancellor
That may depend on the circumstances. For example, earlier in the Committee stage we discussed the situation in which parents knew that there was a possibility of their union resulting in children with a genetic disease. They might have a child who had a genetic disease. They might be afraid to incur the risk of a second child born by natural conception having that same disease. They might therefore prefer, in the light of the information that they could obtain about the embryo that would be produced by the in vitro fertilisation method, to proceed in that way in the belief that they would thereby eliminate the risk of producing a second child with the same defect. That is one example. I hope that I have made it clear. I think that I have not.
The Lord Chancellor
I was not at the moment seeking to convince the noble Baroness; simply to answer her question. This is an important point. That is the reason for the distinction. It is not an oversight. It is based on a real distinction between the situation of a child born to parents who are not married, on the one hand, and the situation in which a child is born as a result of one of the treatments, on the other.
I have sought to deal with the principle of the amendments. So far as they relate to titles of honour and the like I hope to be able to put down amendments accepting them in principle.
On the much more general question which applies far outside that area, the situation is as I have described; namely, that the weight of opinion on consultation was in favour of preserving the anonymity of the donors. I appreciate that that situation might change in the light of circumstances, but I believe that the debate would probably be best conducted in a somewhat wider framework than the framework of amendments which were particularly directed to the question of titles of honour and the like.
As I said, I know that quite a number of organisations concerned with those matters take a different view from that which seemed to prevail on consultation. Noble Lords may think that we should seek to debate the subject on its own account at some stage during proceedings on the Bill.
§ Lord Henderson of Brompton
Before the noble and learned Lord sits down, would he care to say something about the question of retrospective effect in Amendment No. 87, which is also addressed in Amendment No. 150? This is a worrying question. If this is the right place to raise it, I hope that the noble and learned Lord will answer the noble Lord, Lord Prys-Davies.
§ 4 p.m.
The Lord Chancellor
The question concerns the extent to which the amendments would be 1265 retrospective in effect. The first step is to decide what one wants to do and whether the kind of distinction that I have drawn between the two types of case is valid. If it is and a will is already in existence and operating, the person who made the will having died, the question concerning a child born as a result of AID after the section comes into force is a perfectly reasonable question to pose and would not involve retrospective legislation. In a sense, it would involve an effect on the construction of the existing deed as from the date of that section coming into force. However, I believe that it would prevent a perhaps improper distinction being drawn between two types of children, a distinction which it is highly likely never entered the head of the original testator in the will in question.
§ Lord Jauncey of Tullichettle
Before the noble and learned Lord sits down, perhaps I may ask him one question in relation to subsection 4(b) of Amendment No. 141 with which he has dealt and about which I hope I made it clear that I was not very wholehearted. My request to the Government to consider a transitional provision for deeds was not primarily intended to affect the succession of donor children to their parents, but rather to affect their ability to take under deeds which were executed at a time when they would not have fallen within the category of persons who could take. In short, A makes a deed for a certain class of persons when he knows that, because of this legislation, the effect will be that persons will be admitted to that class who would have been unable to take at the time the deed was executed. That was the concern which I expressed in general when speaking to Clause 4(1)(b).
The Lord Chancellor
I believe that I have understood the point. In effect, I am saying that, where an existing deed describes the beneficiaries as children of X, then, after the provision comes into force, I think it would be wrong —this is the policy of the Bill so far —to distinguish between those children of X who are born naturally and those children of X who might be born to X as a result of the treatments, on the assumption that the section was then operating. So, in a sense, my noble and learned friend is suggesting that the class of people in the deed as it stands would be, if I may put it this way, the natural children of X. I would extend that provision to include those children who are born as a result of the treatments. We suggest that it would not be right, when the section is in operation, to distinguish between children born naturally to their parents and children born as a result of treatment with those parents as their parents for the purposes of the law under the provisions of this section.
The Earl of Erroll
Before the noble and learned Lord sits down, perhaps I may say that surely it is not the children that create the worry; it is the grandchildren. One may leave to the grandchildren of the natural children. The person who leaves the trust knows nothing about all those grandchildren who are not yet born, but they may be included in the class. I am a trustee of a trust which has experienced that situation and I envisage the provision including many people who were not 1266 intended by the people who left that property originally. It is the grandchildren, not the children, about whom I am concerned.
The Lord Chancellor
Assuming that I have understood the point, which is a considerable assumption, the distinction sought in subsection 4(b) of Amendment No. 141 is between children who are born naturally, whether grandchildren or not —grandchildren, like children, require to be born —and those children or grandchildren who are born as a result of treatment. The grandchildren may be born either as a result of parents having been born as a consequence of such treatment or as a result of themselves having been born as a result of such treatment.
The Earl of Erroll
The original trust was probably executed long before those grandchildren were born. The original trustee may be dead now, but has left to a class of people which includes grandchildren who are still possibly to be born. He did not know about the Act when he made the trust.
The Lord Chancellor
I quite understand that. The whole point is that, when a person talks about X's children, grandchildren or great-grandchildren, or children in a will which has already taken effect, to any degree, he may, if he thought about this at all, be thinking of children born by natural means. However, the Bill states that, for this purpose, children born by natural means and children born as a result of those treatments should be taken in the same way as children of their parents. That will apply to all degrees of children, grandchildren and the like.
§ Baroness Elles
Before the noble and learned Lord sits down, will he confirm that, as a consequence of the Government's policy on this matter, a child of a donor will be treated in exactly the same way as a natural child? Is that a guarantee for perpetuity of hereditary peers so that, through selection of gender, they will always be able to have male heirs?
The Lord Chancellor
The provision does not apply to titles of honour which certainly include hereditary peerages. The provision, which deals with the status of children born as a result of those treatments, does not apply to titles of honour.
§ Lord Kennet
Perhaps I may ask the noble and learned Lord a question about the future handling or discussion of the Bill in the Chamber. He said that he expected that we would come to the general question of the right of access to information at a later stage in the Bill. We now have a rather full Chamber and it would be interesting to know whether I am right in thinking that we shall come to that discussion under Amendment No. 152 which we plan to take today.
The Lord Chancellor
I am at the service of your Lordships as to when we should have that discussion. I must point out that it would perhaps be undesirable to treat it as if it arose only in connection with titles of honour. It is a much more fundamental and 1267 general question than that, as I think we all agree. It is for noble Lords to determine when we have that debate.
So far I have not seen as much of the briefing about this matter as might yet become available. Therefore I had the feeling that we might perhaps expect to have a fuller debate on this issue at a later stage in the Bill. That is the only reason that prompted me to take that view. So far as I am concerned it is entirely a matter for noble Lords. I have not much to add on that point other than what I have already said as a result of the consultation. I am sure that there are views taken about this matter in this Chamber. The only point of which I want to make sure is that we do not only think that this is a point related simply to titles to honour or Scottish clan chieftainships, important though they are.
§ The Earl of Lauderdale
I do not wish to prolong this general debate too much but I am a little worried. My noble and learned friend the Lord Chancellor speaks of children "born by this treatment". It is not children "born by this treatment" that worries us; some of us are worried about children who are born by this treatment through AID. That is the distinction that concerns us.
I should like to declare a twofold interest in this matter. First, in 1885 your Lordships' House decided that a forebear of mine who was born out of wedlock in New York in 1775 in fact was legitimate by Scottish law, though not by English law. Happily the Scottish law prevailed. That is why I am here, as a Scot. That is how I come to be both the Chief of the Name and Arms of Maitland and also the Hereditary Bearer of the Scottish National Flag for the Sovereign.
I should like to dot the i's and cross the t's on some points made by the noble Lady, Lady Saltoun. Those of us who happen to be a chief find ourselves not only the head of a very extended family but of a family which consists of all kinds of people all over the world who want to know their origins and their pedigrees. Quite frequently I receive letters on this matter from Australia, the United States, Canada and New Zealand and from all parts of the world. Pedigree research depends now and will in future depend on the exact status of parents of a certain child at a particular time.
I appreciate the fact that when this Bill comes back on Report, my noble and learned friend will have looked at the whole issue. No doubt with his customary perspicacity he will find a way through these difficulties. However, I am very worried lest the business of knowing about a birth by donor is brushed aside. We all know that adopted children want to know their origins. It is only fair and right that such knowledge should extend to all children.
So whatever may happen to hereditary titles and honours in the future —there are some who would abolish them, and abolish me come to that —the desire to know about one's pedigree will survive. It will survive all over the world.
With regard to the related problems touched on by the noble Lady, Lady Saltoun —the question of 1268 incest at some stage and the possibility of a brother marrying a sister or of cousins marrying one another without knowing their relationship—surely it is not enough to rely on the view expressed by the medical profession that, if the identification of donors were made, donors would not come forward. If anyone in this Chamber believes that, they will believe anything. Donors are easily obtained. We do not need to go into details.
I welcome my noble and learned friend's willingness to look at this whole matter. However, I implore him to take on board the point that children (and grandchildren or great grandchildren) of donor births should be entitled to have access to that information. I have given my reason: namely, that many people all over the world want to know their exact pedigree.
§ 4.15 p.m.
§ Lord Hylton
We should all be extremely grateful to the noble Earl, Lord Lauderdale, who has very much clarified the issues. As he pointed out, the key distinction lies between those children conceived by artificial insemination through the husband and those children conceived through the aid of a donor. That is the key distinction which applies not only to peerage and other such questions; it also concerns the general population.
I should like to reinforce the noble Earl's remarks about the consultation period. I do not believe that we should allow ourselves to be too influenced by a narrow majority of those responding. It may well have been that the consultation was not sufficiently widely advertised in the first place.
§ Lord Mowbray and Stourton
I should like to say just a few words. I missed a little of what the noble Lord, Lord Kennet, said. He may have been on the same point as the noble Lord, Lord Hylton, and my noble friend Lord Lauderdale. If an adopted child, when it is of a certain age, has the right to know its parentage (who is its father), why in heaven's name should not the child of a donor father to an unknown embryo have the same right? It seems to me to be absolutely wrong—morally and legally wrong —to deny that.
All the matters concerning estates and titles may or may not be important. However the really important thing is that the child should have the same right as an adopted child who has the right to know its real parentage. I believe that that is important. It is no good brushing it aside and trying to pretend that we are creating a new kind of child which does not need to have the same right to know as other children. I shall leave the matter there.
§ Lady Saltoun of Abernethy
First, I should like to thank the noble and learned Lord the Lord Chancellor for what he said about Amendments Nos. 138, 139, 140 and 141 and I note that the Government will bring in amendments at Report stage to take care of our concerns. I am most grateful to him. When the time comes, I shall not move those amendments.
I had not thought that as drafted Amendments Nos. 82 and 83 made necessary the identification of 1269 the donor. Perhaps I was wrong and those amendments were not drafted so as to fulfil my intention. I believed that their object was to make possible identification of donor children so that Clause 28(3) could work. Perhaps I was wrong. I wonder whether the noble and learned Lord could clarify that point.
The Lord Chancellor
It is perhaps entirely easy for me to indicate the full effect of the noble Lady's amendment. However, I think it would be right to take it that Amendments Nos. 82 and 83 would have the effect of requiring the authority to keep information which would unequivocally identify people for whom licensed treatment services are provided and donors of gametes or embryos. Therefore, the result is that a person who donated sperm, for example, would require to be identified.
My noble friends Lord Lauderdale and Lord Mowbray and Stourton and the noble Lord, Lord Hylton, have pointed out that AID children are of particular importance in this connection. I entirely appreciate that point. That is why I linked this matter with the question of whether or not the identity of the donors was to be required. If one has specified the identity of the donors, then something along those lines is possible. This is a matter for your Lordships to consider, but the reason given for not identifying the donors is that which I gave earlier. That is why this question has a very general importance.
§ Lord Teviot
It might be a good idea to try to bring back some order and sense of purpose as regards the amendments and explain their original intention. I am most grateful to the Committee, but we have gone rather far and wide.
The noble Lord, Lord Prys-Davies, was asking about identifying information. It is information that one wants the authority to have. That does not mean to say it must be passed on to everybody. I agree that the anonymity of donors is paramount. Perhaps on later amendments we might have further discussion on the matter that my noble friend Lord Lauderdale raised.
The noble Lord, Lord Prys-Davies, spoke of retrospective legislation on Amendment No. 87. That new clause is to be inserted as bridging a gap. I hope the Committee would agree that it is very important to have the register for it to be private, for the authority not to disclose—to prevent incest taking place. That was the whole point of the clause and the restrospection.
One is grateful to the Government for bringing forward at Report stage amendments concerning coats of arms and also the very important Scottish titles. That is splendid, but they cannot stand absolutely on their own.
My noble and learned friend has been asked to stand up and sit down at least six times, but I hope he will not mind doing so again before I withdraw the amendments. I shall not withdraw the amendments at this stage unless he tells me that the Government will produce back-up amendments to those amendments which deal with hereditary titles 1270 of honour, and will deal with records in some way or other, so that we can return to the matter. Perhaps my noble and learned friend could enlighten me.
The Lord Chancellor
At present I cannot accept any intention to put any kind of marking on the birth certificate. As regards records to be kept by the authority, that is a matter to be determined in the light of the general responsibilities of the authority. I think my noble friend Lord Teviot is asking that the authority should have records from which it can be determined whether a particular person has in fact been subject to one of these treatments at some time which might be related to the birth of a particular child. That is certainly something that one would want to consider.
However, I want to make it clear that I do not regard myself as committed in any way to bringing back amendments to put any marking of any kind on the ordinary birth certificate.
§ The Earl of Lauderdale
Is the noble and learned Lord saying that in those cases where a child is born from a donor there should simply be a blank about the name of his father? In that case it would suggest that they should go and ask the authority. If that is what he means it might be acceptable, but if he is saying that there is to be no indication to researchers that a particular birth has a peculiarity —to put it like that for the moment —I do not think that is satisfactory.
The Lord Chancellor
I quite appreciate the difficulties, but the same is true in relation to what occurs in what I might call nature. The precise circumstances in which children are born when couples are married is not the subject of disclosure on birth certificates. When someone applies for a title of honour —and my noble friend has indicated that he has had some experience of that particular test, as it were —there may be more detailed inquiries made into the circumstances of a particular birth than would normally arise in connection with its registration. This is the kind of material that might emerge in that situation. But as far as I am concerned I do not think it would be right to have a particular mark on a birth certificate in this connection, any more than it is right to require people to put particular marks on birth certificates in every other possible situation. That information would have to come in another way than from the ordinary birth certificate.
§ Lord Ennals
Perhaps I may briefly say that I absolutely agree with the noble and learned Lord the Lord Chancellor. I should be very concerned if he moved an inch in terms of writing anything on to a birth certificate which would give some indication concerning the actual nature of the birth. The child is born as the child of those parents, and anything which is sought to distinguish that child in any way at all could be very derogatory to the future of the child. I am grateful to the noble and learned Lord the Lord Chancellor for withstanding any pressure.
§ Lord Teviot
In all fairness, humble as I am, I should like to bring back order into the proceedings.
1271 It is very interesting to hear my noble and learned friend's views and those of the noble Lord, Lord Ennals, but those amendments about the birth certificate of the child will be discussed later in the proceedings. We shall be discussing those in their context, when it may be—though I think it is doubtful —that we can persuade the noble and learned Lord and the noble Lord, Lord Ennals. But these amendments are to do with hereditary titles. The Government are to come back with amendments on coats of arms, and it is hoped that there will be back-up amendments on records which we will look at on Report.
We have gone far and wide. I agree that these amendments are what one might call a pudding. The noble Lady, Lady Saltoun, and I have tried to divide them, and I hope that we have explained them to your Lordships properly. We have had an extremely good discussion, and we look forward to coming back later with all kinds of ammunition and other points. Meanwhile, I beg leave to withdraw Amendment No. 82.
§ The Chairman of Committees (Lord Aberdare)
This amendment was moved by the noble Lady, Lady Saltoun, so it is really up to her to withdraw it if she wishes.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 83 not moved.]
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.