§ 3 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
My Lords, I beg to move that this Bill be now read a second time.
Some 10 months ago your Lordships' House debated the regulations regarding human fertilisation and embryology research purposes. That debate was of extraordinary high quality and intensity. It was of the utmost importance to hundreds of thousands of people in this country who suffer from distressing and long-term illnesses and whose only hope for a cure lies in medical research and science.
But that debate was even more profound. It touched on matters which go to the very core of our individual beliefs, principles and values: from those who believe that research on embryos is ethically justified in the fight against serious diseases; from noble Lords who worry about the end point of such scientific advances; and from those who rejoice at the opportunity which new medical discoveries bring to humankind. I have little doubt that our debate today will be just as profound.
The purpose of the Bill, which extends to the whole of the United Kingdom, is to ban human reproductive cloning—the creation of another human individual using cloning techniques such as cell nuclear replacement, the procedure used to create Dolly the sheep. The Bill is short and tightly drawn to meet that aim and that aim only. Human reproductive cloning has been universally condemned. For humans it is both an unsafe and an unethical procedure.
In discussing the background to the question of human reproductive cloning, it is appropriate to refer back to 1982 when the Committee of Inquiry into Human Fertilisation and Embryology was set up to look at the ethical implications of developments following the birth of the first test-tube baby in 1978.
The committee, chaired by the noble Baroness, Lady Warnock, produced a comprehensive report after the most intense scrutiny over two years and widespread consultation on the issues raised. That committee reviewed those areas comprehensively. It was followed by the enactment of the Human Fertilisation and Embryology Act 1990. The Act was, and is, a model in its regulation of certain infertility treatments and embryo research. It reflected the need to provide a strict framework within which regulation could be conducted and to take account of the advances in medicine anticipated both by the Warnock committee and Parliament in 1990. It is surely a tribute to the noble Baroness and her committee that the Act continues to provide such a framework.
The decade following the 1990 Act, particularly in the second half, saw developments in cell nuclear replacement technology in animals, alongside the announcement in the US of the extraction of stem cells from a human embryo. That was of huge potential. It meant that in the long term it might be possible to apply the knowledge from work using stem cells made 11 from both spare and cell nuclear replacement embryos to modify patients own cells so that they could be made to generate new cells and tissues. A considerable amount of laboratory work will be needed, but recent developments represent a step further towards the goal of being able to treat a whole range of degenerative diseases—Parkinson's disease, cancers and diabetes, to name but a few.
The House of Commons Science and Technology Committee recognised in 1997 what it called "the profound implications of the research" conducted at the Roslin Institute into cell nuclear replacement. Those issues were taken up early in 1998 by a joint committee comprising the Human Genetics Advisory Commission and the Human Fertilisation and Embryology Authority, which conducted a public consultation on them.
In their response to the joint committee's report, the Government announced in June 1999 that they were setting up an expert advisory group under the chairmanship of the Chief Medical Officer to consider the potential benefits for human health of such research. The expert group included representatives from a range of interests, including ethicists, scientists, doctors and geneticists. After careful deliberation, the group concluded that research on stem cells provides the possibility of exciting prospects for future therapies for a range of debilitating diseases.
While perhaps not strictly relevant to the debate on the Bill today, there have been recent discussions about the relative merits of adult and embryonic stem cell research. This is sometimes presented as an either/or debate. But the majority of scientists working in these fields acknowledge that both areas of research are necessary if the full potential is to realised. Certainly, that was the conclusion of the expert group chaired by the Chief Medical Officer.
It was the work of the Chief Medical Officer's group that paved the way for the 2001 regulations which permitted research for the following additional purposes: first, increasing knowledge about the development of embryos; secondly, increasing knowledge about serious diseases; and, thirdly, enabling any such knowledge to be applied in developing treatments for serious diseases.
The regulations do not specify cell nuclear replacement since it was the Government's view that CNR was already allowed for and regulated under the 1990 Act. That view was confirmed to the Government and to the Human Fertilisation and Embryology Authority by counsel in 1997.
Throughout that process the Government stated on many occasions that they were utterly opposed to human reproductive cloning. They also stated their intent to introduce legislation specifically to ban human reproductive cloning.
That brings me to the implications of the legal judgment of 15th November. The 1990 Act states, among other things, that embryos governed by the Act are,live human embryos where fertilisation is complete".12 The process of cell nuclear replacement, which leads in the normal way to a birth, clearly does not involve fertilisation. As I have said, advice to the Government was that, if challenged, the courts would look to the purpose of the Act—that is, to regulate the creation and use of embryos—rather than look literally at the words used.
It was on the basis of that advice that the Government took the view that all embryos—which have the potential to become human life—are regulated by the 1990 Act and subject to all the protective provisions in the Act and regulation by the Human Fertilisation and Embryology Authority.
The effect was that anyone who wanted to create an embryo by fertilisation or in any other way, such as by cell nuclear replacement, would require a licence from the HFEA and would have to satisfy the stringent conditions laid down in the Act. Anyone who created or used embryos without a licence would be subject to the criminal sanctions in the Act, involving a fine or imprisonment or both.
On the basis of counsel's advice, our approach to the definition of "embryo" also meant that the creation of embryos by cell nuclear replacement for research, which has enormous potential for finding cures for serious diseases, could go ahead, subject to the full rigour of regulation of such research under the 1990 Act, including licensing by the HFEA.
In the event, in his judgment of 15th November, the judge, while acknowledging that the Government had a "powerful case", decided to adopt an approach to the Act that focused on a literal interpretation of the words used rather than the overall purpose of the Act. The effect of the judgment is that embryos created other than by fertilisation are not regulated by the 1990 Act. In practical terms, that means that as the laws stands anyone may create an embryo by cell nuclear replacement and use it either for reproductive cloning or for research purposes without regulation under the Act. However, as your Lordships may be aware, the judge gave us leave to appeal against his decision. We intend to do so.
It is important to note that the judgment, while limiting the type of embryos to which the Act applied, did not affect the operation of the 1990 Act in any way; nor did it affect the Research Purposes Regulations 2001. The Act and the regulations continue fully to protect embryos created by fertilisation used in treatment and research.
In a legal case such as this the usual response is to await the outcome of the legal process before deciding on the best way forward. If the outcome proves to be in the Government's favour, all embryos, however they are created, will continue to be governed by the protective provisions in the 1990 Act and reproductive cloning will continue to be banned by the HFEA.
However, these are not usual circumstances, as yesterday's announcement from the US shows. The prospects of leaving unregulated, in the light of the judgment, the safety and ethical issues involved in bringing into the world artificially a cloned child are 13 too much. That is why the Government decided to bring forward legislation to address that particular issue.
The Bill is short and focused. It makes it an offence for any person to place in a woman a human embryo, other than an embryo created by fertilisation. The offence carries with it the penalty of 10 years in prison or a fine, or both. The penalty applies to the person who places the embryo in a woman. It does not penalise the woman, although, as with many offences, the woman may be liable under the general rules of criminal law if she is an active and knowing participant.
The Bill does not use terms such as "cell nuclear replacement" or "cloning". That is because, first, such terms mean different things to different people in an area of rapidly developing science; and, secondly, because the mischief at which the Bill is aimed is to prevent anything other than fertilised embryos, using sperm and eggs, being implanted into a woman.
The additional and significant benefit of that approach arises from the fact that all embryos created by fertilisation are automatically subject to the full protection of the 1990 Act. That means that the only embryos which may be implanted into a woman are those which are subject to licensing under the Act by the Human Fertilisation and Embryology Authority. That is particularly significant in the light of the judgment of the High Court in which Mr Justice Crane said:it is conceded, in my view correctly, that the organism produced by cell nuclear replacement is naturally described as an 'embryo', at least when the 2 cell stage is reached. This is consistent with the expert evidence before the court".Therefore, the only question which needs to be asked is: how was the embryo created? If the answer is "by fertilisation", the embryo may be implanted but only in accordance with a licence issued by the licensing authority. If the answer is "by means other than fertilisation", as a result of the Bill, if enacted, the embryo may not be implanted at all.
That answers one of the questions which has been asked in the past few days about what happens if a woman has only one embryo created by fertilisation and wants to create a number of further embryos from it in order to improve her chances of having a child. As the embryo has been created by fertilisation, it is subject fully to the 1990 Act and it cannot be used in any way without a licence from the HFEA. It cannot be subject to embryo splitting to create more embryos because the HFEA has said that it will not license that procedure for treatment purposes. Nor can it be cloned using cell nuclear replacement because the licensing authority has said that it will not issue licences for that purpose. Nor can it be exported because the HFEA will issue a direction allowing export only where the proposed use abroad would be legal in the United Kingdom.
As a result of that particular issue, together with a number of matters which have been raised in the past few days, it has been said that the Bill does not go wide enough and does not govern all possible use of embryos created by cell nuclear replacement. I am the 14 first to say that it is not a comprehensive Bill; it is not intended to be so and nor should it be. As I said, the judgment of the High Court means that embryos created by cell nuclear replacement are not governed by the 1990 Act. As regards the key issue of human reproductive cloning, the Government's response is before your Lordships' House today. As I have also said, the Government are appealing against the High Court decision and the outcome of the legal process will then determine what further legal action will be needed in respect of the regulation of such embryos for research. I shall now turn to that issue.
I want to make it clear that the Government do not intend to ban the use of embryos created by cell nuclear replacement in essential research. The Government take the view that, given the potential importance of such research in providing considerable advances in treatment for serious diseases, the use of the embryos should be permitted but subject to strict safeguards. That policy was endorsed by Parliament earlier this year by very large majorities in both Houses after considerable debate and in the light of strong and detailed evidence from the Chief Medical Officer's expert group and others.
However, I want to make it absolutely clear that the Government recognise the concern that, should anyone seek to create embryos for cell nuclear replacement for research, the situation would remain unregulated. That will depend on the outcome of the Government's appeal and we want to wait until the end of the judicial process before taking further action. As I told the House last week in answer to a Question from the noble Lord, Lord Alton, if at the end of the legal process the Government lose their case we shall not hesitate to bring forward further legislation when parliamentary time allows to ensure that embryos created in this way are regulated in the same way as embryos created by fertilisation.
In so doing, the Government will be informed further by your Lordships' Select Committee, chaired by the right reverend Prelate the Bishop of Oxford, which was established by this House in approving the 2001 regulations to which I have referred. I have no doubt that that Select Committee will have much of importance to say on many of the matters we shall discuss today.
In conclusion, we have a process in place which allows your Lordships' House to examine and further debate these profound matters. The Bill before you today is urgent legislation. It is being introduced quickly, 11 days after the judgment on 15th November to which I referred. I make no apologies for that. Such speed reflects the concerns raised by Parliament and the public time after time about ensuring that human reproductive cloning cannot take place in the UK. That is the right and entire focus of the Bill which I commend to the House.
Moved, That the Bill he now read a second time.—(Lord Hunt of Kings Heath.)
§ 3.17 p.m.
§ Baroness Knight of Collingtree
My Lords, today your Lordships are called to debate in great haste a so-called emergency. The emergency has not been caused by armed conflict, natural disaster or a collapse of the Stock Exchange. The emergency has arisen because last January the Government chose to rush through an ill-conceived and badly drafted regulation in respect of which no proper debate, no careful thought or judgment and no amendment was possible. The Government have a bad and indeed dangerous habit of preventing full debate even on the most fundamental moral and far-reaching issues, such as that so briefly before us today.
The January regulation not surprisingly proved inadequate. Has such a lesson taught the Government to allow the House to think more carefully? Alas, no. Again, we have a rushed, curtailed and unamendable measure before us. Rushed legislation and good law are bad bedfellows. And the Government cheerfully acknowledge—the Minister has done so in this House today—that there may have to be other legislation when legal appeal is heard, when the Select Committee reports, or when another crisis emerges showing that the legislation is not adequate. I suppose that whenever further flaws are revealed we shall have more legislation.
Is it really true that one rogue scientist—and an Italian one at that—has caused today's Bill? Surely the Home Secretary has powers to block the man entering Britain if he is that dangerous. Is the weight of the mighty British Parliament working flat out today to be used to crush one man's ambitions? To paraphrase Churchill: some sledgehammer, some nut.
Of course human cloning is a serious threat and must be blocked, but let us try to do so effectively. In 1994 I fought successfully against the unnatural and repugnant use of unborn female children in the name of artificial reproduction. Human cloning, whether for the birth of a child or exploiting and destroying him or her before birth in the name of science, is a terrible use of man's ability to manipulate nature. To pretend that there are two kinds of cloning, one reproductive and the other therapeutic, is incorrect. All human cloning, whether for experimentation or implanting in a womb—any womb—is reproductive.
The Government claim that this Bill bans reproductive cloning. It does no such thing. The Bill does not ban the reproduction of cloned human embryos or their implantation into animals, which is a possibility that scientists are working on even as we speak. They have already implanted human sperm in rats and rabbits. I understand that an American scientist is creating human embryos using cows' eggs. None of that would be banned by the Bill. The Bill does not ban implantation into artificial wombs, another matter that scientists have been considering and working upon. I do not believe that the Bill even bans the creation or implantation of cloned embryos created by fusing a human cell with an animal's egg. No legal decision has yet been made about whether or not such hybrid embryos would be classed as human. 16 Such a hybrid has already been created in the United States. We are in an area of science which is moving very fast. The only way to stop loopholes through which so-called reproductive cloning can slip or further High Court judgments that frustrate the intentions of Parliament is to ban the immoral process of creating cloned human embryos.
The Bill does not even define its own terms. The definition of an embryo was at the heart of the victory of the ProLife Alliance at the High Court last week. Following that judgment, the Government had the opportunity to clarify the law in this Bill, but they have blown it. Do the Government have much of a clue about embryology? For years they had lots and lots of advice from every leading scientific and legal expert. What has that achieved? We have had not one but two pieces of wholly ineffective legislation. I despair.
Before the debacle last January two greatly respected and wise Members of your Lordships' House—a former Attorney-General, my noble and learned friend Lord Rawlinson, and a former chairman of the Bar, the noble Lord, Lord Brennan, who, I am delighted to see, is to speak in this debate—warned that the law did not cover cloned embryos. The same advice was given by Professor Andrew Grubb, a member of the HFEA, and a professor from the Chief Medical Officer's expert group. One would have thought that that provided ample wise advice. But the Government appear to accept advice that they like the sound of but disallow what does not really fit in with what they want. Having received that advice, the Government knew better and ignored all of it. Bless my soul, they were taken to the High Court and defeated. It serves them right. If only they would learn, but, dear me, no.
A series of amendments which would have salvaged the Bill, defining its terms and clarifying its scope as well as following Parliament's will, was carefully, thoughtfully and expertly drawn up and tabled. Alas, as has been the fate of my noble and learned friend Lord Rawlinson, the noble Lord, Lord Brennan, and all other known experts who have given their advice in the past, the amendments were rejected. Your Lordships cannot even be told what they were, why they were tabled or hear them being moved.
What about the possibility of British scientists creating cloned embryos and exporting them? Britain could easily become the source of clinics acting as cloning farms for the Antinoris of this world. On "Newsnight" last Thursday the Minister said that it was not for the Government to legislate on what might be done in other countries. That is not a view which is held by the European Community. Before someone reminds the noble Lord of that fact, let him recall the words of President Chirac of France—I hope that the Minister will take note of them because they come from an important source—that,Nothing will be resolved by banning certain practices in one country if scientists and doctors can simply work on them elsewhere".The Government should keep an eye on advances being made in this field. Professor David Prentice, recognised by many Members of this House as a 17 world authority on stem research, addressed parliamentarians last week. Your Lordships will be aware that stem cell research is the main justification put forward for using cloned embryos. Professor Prentice spoke of the staggering advances in ethical alternatives to embryo stem cell research. It is apparent that the past 12 months have seen enormous progress. The big question that that poses is whether embryo stem cell research is necessary. In view of everything that Professor Prentice said, one should at least stop to think about it. With the mass of new evidence that is emerging and the judgment of the High Court last week, to prevent a full and proper debate on what is arguably one of the most sublime moral issues of our time, as one newspaper leader described it last week, is a disgraceful decision by the Government. Is this really less important than fox-hunting? I would say not. But the Government, who have given—and apparently will give again—ample time for debate on that subject, clearly believe it is much more important than human cloning. Will they never learn?
§ 3.28 p.m.
§ Baroness Walmsley
My Lords, we are debating today the protection of probably the most vulnerable form of human life. Yet we have been given only today to do it and to ensure that the legislation passes through all its parliamentary stages. That is to treat both this very important issue and Parliament with contempt. It is 10 months—to be precise, it was on 22nd January—since this House had the opportunity to consider the issue of human reproductive and therapeutic cloning in the debate on the Prayer against the current regulations. In that debate I and many of my noble friends on these Benches expressed opposition to human reproductive cloning alongside our support for research into therapeutic cloning.
While we supported the current regulations, we asked the Government to bring forward legislation as soon as possible to make clear that human reproductive cloning was unlawful so as not to muddy the waters in the debate about therapeutic cloning. I shall not talk about therapeutic cloning today because I do not believe that it is relevant to the subject of this debate. We were led to believe that the Government would do so, but the legislation was not mentioned in the Queen's Speech. My Front Bench colleagues protested about that at the time.
The House also voted to appoint a Select Committee to investigate the issues related to therapeutic cloning, while allowing work on therapeutic cloning to continue. One of the most damning aspects of introducing the Bill to the House today in such haste is the fact that the Select Committee was not consulted, although its report is imminent.
The Bill is also unnecessary. It would have been far better to have waited until the Select Committee report had been published, then to draft a more comprehensive Bill covering all the issues and have it properly debated in Parliament.
18 The Government make a virtue of the fact that the Bill is narrowly drawn. That is one of the problems with it. It is so narrow that it gives cloned embryos only one of the four protections afforded to fertilised embryos by the 1990 Act. If the Bill is considered necessary, why is it not necessary for it to include protection from implantation in animals, export and experiment after 14 days? The Minister may say that those are already explicitly covered by the Human Fertilisation and Embryology Act. If so, so is implantation in a woman, but the problem is that the judge in the recent test case did not think so.
We therefore need to ask two questions. First, did the Government take a wide range of legal advice on whether cloned embryos were protected under current law? The fact that a senior judge takes issue with the Government's advisers, and the fact that doubts have been widely touted in the media for months, suggest that there was a clear risk that the judgment could go the way that it did. Why did not the Government take action before, cover their back and avoid having to bounce Parliament in this way? If the Government are confident that the appeal will go their way, why do they not keep their nerve now? Legislation that is reactive to events and rushed through Parliament is rarely good legislation.
The second question is: is the Bill—which comes prior to the Select Committee's report, and, it is to be hoped, subsequent legislation—necessary at all? I do not believe so. Why do we always get a knee-jerk reaction from the Government to front-page scaremongering by tabloid newspapers? Why do the Government not listen to the medical experts who are telling them that the Italian gynaecologist, Professor Antinori, oversells his ability? He may well make a lot of noise about what he can do, but, in order to achieve implantation in a woman in this country he would have to persuade doctors to help him. He would have to obtain donated eggs and break the terms of their storage licence—which is itself unlawful; or he would have to store eggs without a licence, which is also unlawful. Despite all his boasting and hot air, it is extremely doubtful that he would be able to do any such thing until we have had the chance to read and debate at appropriate length the Select Committee's report and the legislation that must arise from it
The Bill is either too little, far too late, or unnecessary. By the way, it should have been called the implantation of human reproductive clones Bill. However, as I am not in favour of human reproductive cloning, I am unlikely to vote against the Bill, just in case the Government are right and I am wrong about its necessity. The amendments tabled by the noble Lords, Lord Walton of Detchant and Lord Alton of Liverpool, are also unnecessary, but I express my vigorous protest at the way in which the Government have dragged their feet in the matter, and the way in which Parliament is now being treated.
Finally, I apologise to your Lordships, and to the Minister, that because of the last-minute nature of the debate, I may not be able to be present at its end.
§ 3.34 p.m.
§ The Lord Bishop of Oxford
My Lords, I rise to speak only briefly to say that the Select Committee is on course to report by the end of the year or early in January. I am sure that your Lordships will understand that, because the amendments tabled for discussion in Committee are highly controversial and directly relevant to the committee's work and the issues that it is discussing, it would not be appropriate for me to pre-empt anything that the committee wants to say on the matter by voting on the amendments.
On the Bill itself, it is fair to report that all the witnesses whom we have questioned on reproductive cloning have been opposed to it; we have heard no witness in favour. It has been put to us that the scientific objections to reproductive cloning are currently overwhelming. It took 277 attempts to produce Dolly the sheep. It would be unthinkable to allow such a degree of experimentation on a human being. Moreover, the consequences of producing clones are not well understood. In animals, there is a high rate of malformations and premature deaths. Many clones are also excessively large.
I am sure that your Lordships will agree that the issue is not simply scientific, because it would be unethical to attempt to produce a cloned baby, given such a high risk of abnormalities. The committee has also been trying to grapple with the more difficult and teasing issue of what may be the fundamental objections to reproductive cloning, supposing that it ever became scientifically safe. We have examined and are in the process of examining arguments on human dignity, eugenic and racial purposes, genetic identity and familial and welfare considerations. I hope that the committee will be able to illuminate the debate on those difficult and teasing issues when we report.
The noble Baroness, Lady Knight, drew attention to the increasing importance of research on adult stem cells. A huge amount of exciting research on adult stem cells is underway at present, and has been since the Donaldson report and since your Lordships passed the regulation. I assure your Lordships that the Select Committee has been aware of that research from the word go; we have received a great deal of evidence in support of what adult stem cells can do. It is no exaggeration to say that that has been the prime scientific question before the committee from the outset.
I very much hope that by the end of the year, or early in January, we shall be able to offer to your Lordships a considered view on the strengths and weaknesses of the various types of therapy that we are considering, as well as of the strengths and weaknesses of various arguments about the issues that we are considering.
§ 3.38 p.m.
§ Lord Brennan
My Lords, I welcome the ban on human reproductive cloning that the Bill would impose. Making a biological copy of another human being is wrong. There is no clinical, scientific, therapeutic or moral justification for human reproductive cloning.
20 I have five reasons for supporting the Bill, but before I turn to them I should mention that the noble Baroness, Lady Knight, was kind enough to refer to me in her speech. I hope that she will not treat it as an unkindness on my part that I vigorously reject what I consider to be the unnecessary criticism that she made of the Government's position. The five reasons go to support a Bill which, although short, should be clear, meaningful, reasonable and thus should meet the public need.
The five reasons are as follows. First, in modern society it is very necessary to develop and maintain public confidence in science and biotechnology. Within the field covering the use of stem and adult cells for various purposes, it is natural that a primeval fear has taken hold among many people; namely, that at the hands of science they face the risk of copies being made of human beings. That is an unjustified fear, but is it not understandable? In Huxley's Brave New World, written 70 years ago, genetic engineering was a commonplace in his fictional world. Human beings were created by cloning and were mass produced. Mothers and fathers became "controllers" and "predestinators". That is what the ordinary person thinks of in that context.
In describing the need for public confidence, an American scientist put it well when he said:To allow human cloning would be a fateful step toward making man himself simply another one of the man-made things. Human nature becomes merely the last part of nature to succumb to the technological project which turns all of nature into raw material at man's disposal".So the primeval fear and the intellectual commentary lead to the irresistible conclusion that cloning turns human reproduction into the manufacture of human beings. People do not want it and they do not want science to produce it.
My second reason is the need for widespread law to control the fear of human reproductive cloning. In 1997, in Denver, the G8 Summit called for a worldwide ban on the cloning of human beings. That call was echoed by many international institutions, with UNESCO among them. What was the importance of international agreement? It was to control production, storage, importation, exportation and use, on an international basis; to prevent this becoming a common fact of modern life. It was encapsulated in the European Convention on Human Rights and Biomedicine in the protocol agreed this year. Many European countries have agreed to the following:Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited".That sentiment is reflected in the Bill before the House, it is reflected in United States legislation presently in Congress, it is repeated in the Australian statute as well as in that for Hong Kong. With those references, noble Lords will acknowledge the international solidarity on this objective. The law needs to be in place, both here and elsewhere.
My third reason is that there is no conceivable basis, even if one were to consider human cloning, for thinking that it is a safe process. It would enable a 21 grown man to have, in effect, a twin baby son or a grown woman to give birth to a twin sister. Even if fertilisation and birth were successful, no one could vouchsafe the normality of the human being so created, its lifespan, its fertility or its resistance to disease. Much worse, no one could safely anticipate its mental health or peace of mind. However much is known about humankind now, much more has yet to be discovered. It is simply not safe.
My fourth reason is that, if the Bill is not passed quickly, there is a serious and present danger—I can assure the noble Baroness, Lady Walmsley, of this—in the form of the Italian doctor, Dr Antinori, along with his American counterpart, Zavos, who are both determined to make use of opportunities as they arise. They speak of 200 women ready to undergo a cloning implant, eight of them British. The day after the judgment was passed in the High Court, Dr Antinori was reported to have said that he wanted immediately to set up a development programme within the United Kingdom. The risk is present and it is a serious risk.
Those who seek to have a child through in vitro fertilisation do so for very genuine reasons. But to take that a step further, there are those who suffer the death of a child and who may want another exactly the same. Then there are those who, for mal à propos, want to recreate their own image. People will spend money to achieve that objective. Disabled though they may be in their thinking, and emotionally deprived, they exist. Before the United States Congress, one organisation claimed to have on its books 200 applicants ready to spend up to 200,000 dollars on producing a child by this route. That is big business. So the risk is present and it is serious: the man or woman who wants to be the leader of the march of science, perverse though it is, and the organisation that wants to make money, when combined, prey on those who want a child. That risk requires action now.
My final reason is also the most important. The Bill serves to state the legislature's belief in the sanctity of human life. That is a vital duty on the part of a legislature. When there exists the risk that the sanctity of human life may be in danger—society undermined by human reproductive cloning—immediate action is necessary. But it needs to be thoughtful action, no matter how swift the legislative process. It is important to note—I mention it chronologically, not critically—that we have had the 1990 Act of Parliament; we have had regulations, about which a dispute has arisen; we had a long adjournment before a case which ultimately went against the Government; we have this piece of legislation; we know of an appeal which may go one way or the other; and we have the potential of yet further legislation. This problem requires policy, carefully thought out and clearly stated. Human reproductive cloning is one aspect of that general policy requirement.
In the list of amendments tabled in Committee, I have put forward two, neither of which so far has been categorised either as controversial or a call on opposition. One seeks to cover the gap between 22 preparatory acts and the commission of the act; namely, the creation and the keeping of non-fertilised embryos. That gap exists.
When my noble friend Lord Carter told the House the other day that the Bill was to plug a loophole, he was quite right. My amendment seeks to ensure that it is fully plugged, to cover not only the act itself but the creation of the means to complete that act.
My second amendment seeks to define "fertilisation" exactly as my noble friend the Minister has done: that is, the fertilisation by one human sperm of one female egg.
I have given my five reasons. I end by asking that in our debates we acknowledge that in this particular area there is a productive bridge between the community and science where they agree together that reproductive cloning should not be allowed. It is a happy coincidence of an ethical concept and a scientific acceptance of it. On his wall at Princeton, Albert Einstein had a notice that stated,Not everything that counts can be counted, and not everything that can he counted counts".The ethical framework on this occasion is beyond the search for scientific knowledge. The Bill is welcome and should be passed.
§ 3.51 p.m.
§ Baroness Warnock
My Lords, I shall be very brief. I have only two reasons to offer why it is that I welcome the Bill, although doubtless there are others.
The first reason is that the Bill—even if rather hastily—fulfils the promise made by the Government that there should be a Bill to prohibit reproductive cloning. It is in accordance with what we were promised in January and on those grounds alone it is worthy of welcome. It will prove beyond doubt the determination of both government and Parliament to outlaw human reproductive cloning. As we have heard, this will undoubtedly reassure the many people who, rationally or irrationally, feel deeply, emotionally and fearfully that human cloning must always be opposed. This fear is very deep. It expresses itself in many kinds of scientific mythology and it cannot be disregarded.
My second reason is that the passage of the Bill will have very good consequences for the reasonable debate we are promised on the findings of the Select Committee at present sitting under the chairmanship of the right reverend Prelate the Bishop of Oxford. Some of the objections to stem cell research have been based on the supposition that once therapeutic cloning was permitted, reproductive cloning would be sure to follow by the route of the dread slippery slope. If the Bill is passed, we need no longer try to answer such objections because the slippery slope will have been definitively blocked by primary legislation. We shall therefore be in a position to concentrate on the arguments based on the premise that stem cell research, and embryo stem cell research in general, is in itself intrinsically evil, however beneficial its possible consequences. I believe that our being able to 23 concentrate on that fundamental issue will lead to a considerable improvement in clarity, and so I welcome the Bill.
Nevertheless, I share with others some doubts about its drafting, which seems still to leave room for a variety of interpretations. I do not intend to address the question of those doubts because I hope that they will be resolved in Committee later today.
§ 3.55 p.m.
§ Lord Winston
My Lords, in rising to speak briefly in the debate, I should first declare an interest as a professor of fertility studies at Imperial College and as an employee of the Institute of Developmental and Reproductive Biology. It is perhaps relevant to the debate that for the past 20 to 25 years I have been involved in research on, first, animal embryos and more recently on human embryos. I suspect—although I am ready to be challenged—that I may be the only person in the Chamber who holds a licence to do research from the Human Fertilisation and Embryology Authority.
It is important to make one observation at the outset. There are a number of people who may well feel very offended by the kind of pejorative discussion of cloning that has taken place over some time in this community of ours in Britain. It is no exaggeration to say that there are probably 20,000 to 25,000 human clones in Britain—that is, identical twins. They have identical DNA; they, in the main, do not suffer from being clones; and I suspect that many more of them, were they to understand that we seem to disapprove of clones, might have something to say about it. It is important to make that clear. There is nothing quite so obvious about cloning—which nature does herself—which necessarily is fundamentally wrong.
Having said that, of course, I agree with every noble Lord who has spoken today that reproductive cloning is wrong. It is clearly wrong at the moment for two obvious reasons. First, it treats a human being like a commodity, which is dangerous and unacceptable. Secondly, at the present time it carries very severe risks to the individual who is cloned. That may not always be so, but certainly it is at the moment.
The problems with cell nuclear replacement are very profound indeed. First, even though there now have been reports of human eggs in the United States being produced in the cloning process with cell nuclear replacement, I take those reports with a certain grain of salt. The journal in which they have been published is not exactly a high-flying or heavyweight journal, and it may well be that many of the tests which need to be done to prove that an embryo has been cloned have not been done.
One of the key issues that we need to understand is that in producing any human embryonic cell there is grave difficulty in getting the right number of chromosomes in that cell. It is a problem that we have been observing in biology for a long time. It is true to say that most human embryos have such severe faults in their chromosomes that they would not be viable or 24 capable of life in the uterus. That is a fundamental reason why it is almost certain that any attempt by Antinori, Zavos or anyone else to produce a human clone would fail.
The second problem is that we know from work in at least four species that animals which are produced by the cloning process are very frequently abnormal, as has been stated. One of the key problems appears to be a phenomenon which affects what is called genomic imprinting. Normal individuals such as ourselves inherit one set of chromosomes from one parent and one set of chromosomes from another parent. Many of the developmental genes which are key to normal development are turned on in the chromosome inherited not necessarily by the mother but by the father. In the case of a cloned animal, all the chromosomes are inherited from one individual, and so the pattern of genomic imprinting appears to be impaired. That is almost certainly the reason why, as the right reverend Prelate the Bishop of Oxford pointed out, so many of these animals are of abnormal weight. It is very likely that the growth factors, which are controlled by genomic imprinting, are certainly impaired, and that is what gives rise to these abnormalities.
Thirdly, it is likely that many other genes are also not expressed normally in most of these animals. It would be unthinkable to bring a human into the world if that human suffered from abnormalities of gene expression. That alone is a reason to ban reproductive cloning. It would be interesting to know whether, in time, some of these problems will affect therapeutic cloning. We shall have to see. Clearly, it would be of no help to produce cells for transplantation which expressed genes abnormally. That is one of the reasons why further research is needed into this whole area.
There are other reasons why I am sceptical about cloning. Not all our DNA is in the cell nucleus that is being transferred; some DNA—16,500 base pairs—is in the mitochondria, in the substance of the cell or the egg cell. Some of those fragments of DNA are possibly important in the rejection process. So it may well be that, even though we think that we have engineered a tissue that might be transplantable in the same individual who has given the nucleus, that may not be so. Much more research will be needed over many years to validate and prove that.
There is another problem with any form of cloning, therapeutic or reproductive. We can see this with regard to therapy. Anyone who donates a nucleus—for example, a sufferer from a particular disease, in the hope that the cells may then be given back to him for replacement—may reproduce the same genetic defects that caused the original disease. So there are many reasons why research in cloning technology will have to proceed extremely slowly, and with great scientific caution.
I completely agree with my noble friend the Minister that this is a very exciting area for research, which offers hundreds of thousands of people all kinds of untold potential benefit for the treatment of their disease. That is correct. But it will be a long time before 25 the benefits will he seen. We must recognise that more research is needed. That is one of the reasons why I fundamentally support embryo research in this field, given that in the normal course of events human embryos so frequently go to waste.
Perhaps I may clarify a point made by the noble Baroness, Lady Knight. Everyone who speaks in this Chamber does so in good faith. However, we are sometimes prepared to listen to "expertise" which is rather less expert than it sometimes appears. Mention has been made, for example, of a Professor David Prentice. I did not hear him talk, but I have no reason to believe that he is a great expert on stem cells. Indeed, I looked him up on the Medline this week to find out who he was, and I saw that he had testified to Congress. But he has published only some four papers in the past 10 years. Only the last one, published in 1993, has much to do with stem cells, and that fairly remotely.
It is fair to say that the whole issue of whether adult stern cells or embryonic stem cells are the most appropriate remains to be seen. But it is true that almost every major developmental scientist in this country at the present time is firmly of the view that the use of embryonic stem cells seems to be the most promising area of research. That is why so many leading universities are currently investing in that field, and why the Medical Research Council has decided that it is a field in which there must be much more endeavour in this country and is now ready to support it more wholeheartedly.
Finally, perhaps I may make what might be termed a religious point. I know that noble Lords may quarrel with this, but it is my view that science—knowledge—does not have a moral dimension. If we get involved with nuclear physics, we may end up inventing an atom bomb. Equally, most of us in this Chamber will have had an X-ray at some time which has been vital to our health. On the whole, we cannot know before such knowledge is derived whether it will be used for good or for ill. As human beings we have free will. We eat from the tree of knowledge; it is up to us not only to use knowledge, but also to use discernment and wisdom.
It seems to me that we should not be banning the pursuit of knowledge. What we must do is make certain that that knowledge is used for good purposes and not for ill purposes; and to make certain that it is gained in a way that is ethically justified. That is very much the concern of all Members of this House. I believe that the Bill goes in the right direction. I support it wholeheartedly. It is a simple Bill, which will do exactly what is required. I do not think that it in any way destroys further discussion about stem cells. We look forward to the report by the Select Committee early next year.
§ 4.6 p.m.
§ Lord Rix
My Lords, I do not propose to detain your Lordships for long and shall avoid the temptation to make a lengthy Second Reading speech just for the sake of hearing my own voice—which I am losing anyway—for I said most of what I have to say on the 26 subject of human reproductive cloning when we debated the Human Fertilisation and Embryology Regulations 2001, on Monday 22nd January. If your Lordships can be bothered to undertake the tedious task of looking it up, my remarks appear in Hansard, Volume 621, No. 16, col. 78. They illustrate why I shall be supporting the Government today in their efforts to offset the problems caused by the judgment of the High Court on 15th November, as well as yesterday's surprise announcement from Advanced Cell Technology in Massachusetts.
On wider issues, as has been stated by the Minister, we await the recommendations of the House of Lords Select Committee and the result of the government appeal against the High Court decision, before deciding whether these need to be addressed.
We cannot walk on by if it may become possible to eliminate the distressing symptoms of dementia and loss of memory; if we can help people suffer a little less pain, loss of function and restriction of activity; if Parkinson's, Huntington's and Alzheimer's become diseases of the past—and, speaking personally as the father of a daughter with Down's syndrome and the grandfather of a grandson with Down's syndrome, if the early ageing process in many people with Down's syndrome is somehow halted. Being a good Samaritan is not only legitimate, but necessary. Being arrogant enough to want to design and custom build human beings is neither legitimate nor necessary. We can stop that happening in this country; and since we can, we should. Therefore, without hesitation, I shall support the Bill.
§ 4.8 p.m.
§ Baroness Gould of Potternewton
My Lords, it has been made clear in the debate that there is universal condemnation of human reproductive cloning, which extends beyond the moral and ethical boundaries that I am prepared to accept. It was clearly important for the Government to respond quickly to plug the loophole in UK law; namely, that embryos created other than by fertilisation are not regulated by the Human Fertilisation and Embryology Act 1990. It appears that part of the reason for the urgency was that we had to address public concerns and to make sure that we did not, as my noble friend Lord Brennan said, remove public confidence in science.
In introducing the debate, my noble friend the Minister said that the judgment, while limiting the scope of the definition of "embryo", does not affect the 1990 Act in any way; nor does it affect the Research Purposes Regulations 2000. I also believe that the Government are right not to include therapeutic cloning in the Bill—a point to which I shall return.
Unlike some noble Lords, I genuinely believe that the Government and everyone who provided legal advice to them thought in good faith that human reproductive cloning had been outlawed by the 1990 Act and that the regulatory authority had the power to refuse any licence to people engaged in cloning. While the regulations did not in themselves allow the creation of cloned embryos for research purposes, it was 27 believed that CNR embryos were already allowed and regulated under the purpose of the 1990 Act. Mr Justice Crane took a more literal view, restricting the definition of embryos. No doubt that is an outcome of the dramatic advances that have been made in genetic science in the past 10 years.
It is argued that reproductive cloning might be the only way in which some people are able to have a child. However, there are severe ethical, legal, scientific and political problems in allowing reproductive cloning as a treatment for infertility. Putting aside the moral unacceptability, such cloning, as we have already heard, is a highly dangerous procedure. Dolly the sheep was the only clone out of 273 attempts. Professor Ian Wilmut, who created Dolly, has warned that the process of cloning causes subtle errors in the way that the genes function and that random errors and problems can occur genetically on the way. He reiterated that view in today's Daily Telegraph, responding to the research that has been carried out in the USA.
The cloned sheep Dolly appears to be sterile and ageing rapidly. Dr Harry Griffin, the assistant director of science at the Roslin Institute, has warned that, although cattle, pigs and mice have been cloned as well as sheep, the process has not been repeated successfully in our near relative, the monkey.
As a result, Dr Griffin has made it clear that any attempt to clone a child would be wholly irresponsible, given the abundant evidence that present cloning techniques are inefficient and unsafe. As a lay person, I found fascinating the explanation by my noble friend Lord Winston of the reasons for that.
The Italian gynaecologist Dr Antinori does not share the view that the techniques are inefficient and unsafe. There has been some debate as to whether he could achieve what he wants in this country. He has said that he expects to be able to do it in a few months, because he has the families and the ability to do it, and that he wants to descend on this country for that purpose, as Britain has the best laboratories and technology available. I do not care whether he is a maverick or whether he is being realistic about what he can do; I am not prepared to take the risk. As my noble friend Lord Brennan said, that risk is real and serious.
Most people recognise the special and sacred nature of human life. I have elaborated on the problems of human reproductive cloning because the issue has been dealt with far too flippantly by some in the media. As the debate shows, this is a very serious subject. I wish that the media would realise that and treat it with the seriousness that it deserves.
Unlike the noble Baroness, Lady Walmsley, I wish to mention human therapeutic cloning, although only briefly. The Care organisation, which has communicated with all noble Lords, has called for all types of cloning to cease immediately until after the Select Committee on Stem Cell Research reports its findings. That would reverse the regulations that your Lordships' House debated in some detail and at some length earlier this year, establishing that Select 28 Committee. The case for human embryo stem cell research is unchanged, subject to strong safeguards, as my noble friend the Minister said. The potential benefits of such research, together with parallel research on adult stem cells, must not be hampered by the ruling. The work must continue, under a strict regulatory scheme.
To take any other course of action would be an injustice to all those suffering from degenerative diseases—diabetes, Alzheimer's, Parkinson's, Huntington's and multiple sclerosis—even though it may be many years before solutions are found. Each day matters for those who are waiting for help to achieve a more dignified and healthier future. It would be a great disappointment to those people if such research were unnecessarily delayed.
However, the High Court judgment underlines the need for regulations and legislation to keep pace with scientific developments. It is very important that there should be a continual examination of the regulations, the legislation, the guidance and the rules under which research is conducted to ensure that the rules that we adopt do not lag behind the scientists.
The Bill is necessary so that the abhorrent and morally repugnant concept of human reproductive cloning is effectively banned. I sincerely hope that every Member of your Lordships' House will vote for it.
§ 4.16 p.m.
§ Lord Alton of Liverpool
My Lords, like the noble Baroness, Lady Gould, I support the Bill so far as it goes in outlawing reproductive cloning. I argued for that during the debate in January. I welcome the initiative that the Government have come forward with, although I wish that it had happened in January and that we could implement a comprehensive ban on all forms of human cloning. The developments in the United States in the past 24 hours show how fast events are moving and the importance of taking international action to deal with these issues. None of us can have a fortress mentality on these questions. We have to do what we can to facilitate international agreement.
The noble Lord, Lord Winston, will not be surprised that I disagree with his statement that science does not have a moral dimension. We would not be considering these questions today if science did not have a moral dimension. There would be no need for any regulatory framework or any system of jurisprudence or law. Everything that society's values are based on points to the need for a moral and ethical framework.
However, I agree with the noble Lord that we should properly draw a distinction between natural twinning and artificial cloning. He pointed to the tendency of the latter to lead towards the debasing of life through what is described as commodification—a word used by the former Archbishop of York, the noble Lord, Lord Habgood, in a letter to The Times. If that is so for reproductive cloning, how much more does therapeutic cloning lead to the commodification of life? In that process, we deliberately create a human embryo, disembowel it, take from it what we want and 29 then throw it away. That raises profound questions of the sort that the Minister said we should debate and discuss on this Bill and when the right reverend Prelate's Select Committee reports to us.
If these are profoundly important issues, as the Minister said, we are right, as the noble Baroness, Lady Walmsley, said, to consider the modus operandi with which we are dealing with such important questions. The Minister talked about the huge potential of the human embryo. Since 1990, when the original legislation was passed, more than 300,000 human embryos have been destroyed or experimented on. In a curious way, the noble Lord's argument makes my point for me. If an embryo has such huge potential, even within the first 14 days of its creation, to provide a donation with life-enhancing opportunities for others, what does that say about the uniqueness and importance of that new life that has been created?
The Minister talked about this not being an either/ or debate about embryonic cells versus adult stem cells. I well recall the contribution made by the right reverend Prelate the Bishop of Oxford during our debate last January, however, when he rightly told us that if other means were available that avoided the need to create embryonic stem cells for the purpose of experimentation, we were duty-bound to investigate them. Indeed, even in the regulations it does say that if other means are available then we must not proceed with the creation of embryonic stem cells. This holds out great hope for me that there may be common ground in your Lordships' House. Again, the noble Lord, Lord Winston, pointed to these possibilities in his remarks about the use of adult stem cells.
There are arguments for and against on both sides. I was pleased to hear what the right reverend Prelate said to us earlier about the thoroughgoing way in which those questions would be investigated and reported upon by his committee. Having appeared before the Select Committee last week with Professor David Prentice from the United States, but also with Professor Neil Scolding from Bristol Frenchay Hospital and Dr Michael Antoniou from Guy's Hospital—some of the foremost authorities on these questions and some of them involved in clinical practice—Professor Prentice told the Select Committee that dozens and dozens of pieces of research and evidence have now been produced which illustrate, since our debate last January, the better use of adult stem cells in therapeutic processes over and above the use of embryonic stem cells. I shall return to that question later in my remarks.
Perhaps I may briefly recall something else which the Minister said in his opening remarks. He said that the Government will not ban experimental cloning. This makes something of a mockery of the process of having a Select Committee at all. If, for instance, the Select Committee were to report that we do not need to use embryonic stem cells and that they are inherently unstable and carry dangers—the point Professor Prentice made to the Select Committee last week—is he saying that the Government will then disregard its findings?
30 I am grateful to the Minister. He is shaking his head and saying that the Government would not do that. It is important for the House to know that, because one of the concerns I had about the creation of a retrospective Select Committee was that we were invited in January to approve orders and then to create a Select Committee with no clear understanding of how its findings would then be viewed by the Government.
§ Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Lord for giving way. I think I said at our debate in January, and I certainly repeat it, that the Government would of course need to take account very seriously of the recommendations made by your Lordships' Select Committee. The debate today and what has been happening in the last two or three weeks make that even more imperative.
§ Lord Alton of Liverpool
My Lords, I appreciate that clarification, because that does open up the possibility of some common ground being found in different parts of your Lordships' House.
In January the Minister said to the House that there were no new fundamental issues raised by the regulations which had been placed before us, and the Government told us that CNR—cell nuclear replacement—was lawful. Clearly those two assertions have been disproved in the High Court. The noble Lord, Lord Winston, said to us during that same debate that,there is not the slightest possibility of human clones".—[Official Report, 22/1/01; col. 100.]Clearly the events of the last 24 hours demonstrate that things have been moving very fast in this debate. To make legislation as we proceed, as it were on the hoof, may therefore not he the best way of dealing with things.
The Government's eagerness to dispense with detailed scrutiny, transparency and proper parliamentary opposition does seem to be undimmed. As the noble Lord, Lord Roper, alluded to in the debate on 21st November, the Bill has been drafted in such a way as to avoid substantive amendments. Therefore, the exclusion of the implantation of a cloned human embryo into an animal, into artificial wombs, even into men, or the sale or exportation of cloned human embryos, are not dealt with in this Bill, and it is impossible, as the noble Baroness, Lady Knight, said earlier, to bring amendments in order to deal with those omissions.
The Government do not appear to have learnt any lessons from January. They have adopted a conveyor-belt approach to legislation. In an age when politicians are seeking to arrest growing public apathy towards parliamentary politics and the lack of public confidence in our democratic procedures, the Government's approach is wholly counterproductive. My noble friend Lady Warnock said in the debate in January that the Government were shovelling through the unamendable regulations and she said elsewhere that there was an element of bullying involved.
31 The legitimacy of the consultation process has therefore been seriously undermined and does nothing to assuage the concerns raised by the Select Committee of your Lordships' House that looks at science and technology, which said that the ethical debate and scientific debate are out of sequence and that public opinion is therefore being alienated. They said that "science's relationship with United Kingdom society is under strain".
Looking at the Bill itself, in banning live birth cloning it deals with only one aspect of Mr Justice Crane's recent High Court judgement. In a letter to Members of your Lordships' House dated 22nd November, the Minister wrote, "We must legislate urgently to ban human reproductive cloning". Yet the Bill does nothing to stop the creation of a human clone. As the noble Lord, Lord Brennan, pointed out in his admirable remarks, it merely prohibits the transfer of a cloned human embryo into a woman.
Up until last week, the Government had indicated that, despite the warnings from myself and others that the 2001 regulations were legally flawed, there was no rush to place a ban on live birth cloning on a statutory footing. As the Minister informed this House in July,we recognise and share the concerns of many people about human reproductive cloning. However, that cannot be carried out in the UK. … We have stated our clear intention to introduce primary legislation to put this ban on a statutory footing as soon as parliamentary time allows".—[Official Report, 4/7/01: col. 816]It would appear, however, as others, including the noble Baroness, Lady Gould, have said, that because Severino Antinori had appeared on the scene this spurred the Government into action. The explanatory note to the Bill states,This Bill fulfils the Government's commitment to bring in legislation to put the ban on human reproductive cloning onto a statutory footing. It is brought forward following the judgement of the High Court on 15th November 2001.In other words, the Bill is a response to the High Court finding, not a response to Severino Antinori. In that sense, we must judge it against the High Court judgment and not just against Antinori. Having sought advice from the Library of your Lordships' House, I was told:In response to your recent enquiry I am advised by the Home Office (Immigration and Nationality Directorate) that the Secretary of State is able to exclude a person from entering the UK under his general powers to regulate the entry of people into the UK. These powers are set out in ss. 1-4 of the Immigration Act 1971 (… which gives the current text, i.e. as amended by subsequent legislation). Section 3(5)(a) gives the Secretary of State power to deport a person from the UK if he deems it 'to be conducive to the public good'.In other words, if we simply wanted to stop Antinori from entering the United Kingdom, the provision is already there without an Act of Parliament. I might add, however, that if he were to come here and carry out the procedures that he is suggesting, due to the serious medical risks inherent in live birth cloning—a point referred to by the noble Baroness, Lady Gould—any doctor who carried out such a procedure would not be acting ethically, could be subject to GMC censure, and could even find himself or herself facing possible criminal assault charges.
32 More importantly, if the Government are so concerned about the prospects of scientists coming here to practise live birth cloning, the safest thing to do would be to prohibit human cloning in all its forms, not just the implantation of cloned embryos in women, at least until the Select Committee on stem cell research has submitted its recommendations and Parliament has a proper opportunity to debate these issues.
The Bill's failure to prohibit human cloning in all its forms is not its only flaw, however. The Bill fails to outlaw the transfer of a cloned human embryo to an animal, unlike Section 3(3) of the Human Fertilisation and Embryology Act 1990 which does specifically prohibit the transfer of a non-cloned human embryo to an animal.
The spectre of animal-human hybrids is an increasingly real one. There are now at least three groups that have created animal-human hybrids from animal eggs and human nuclei. There are patent applications to cover this and many other similar forms of animal-human hybrid. There is also a patent application to create animal-human chimeras, which could be part or virtually total clones, and take them into animal wombs.
As drafted, the Bill does nothing to stop cloned animal-human embryos, first from being developed beyond the 14-day stage either in culture or in vivo; secondly, from being implanted into a woman, as they are not "embryos" according to the Human Fertilisation and Embryology Act 1990, and, thirdly, from being implanted into an animal. In addition, if embryonic stem cells derived via experimental cloning were multiplied up and used as the donor nuclei, large numbers of clones could be produced.
The Donaldson committee recommendation number six stated that,The mixing of human adult (somatic) cells with the live eggs of any animal species should not be permitted".The Government have been keen to follow many other aspects of the Donaldson report and I shall be grateful if the Minister, when he comes to reply, can explain why that particular recommendation was overlooked.
The Bill also fails to prohibit the transfer of a cloned human embryo to a man or to an artificial womb. Lest your Lordships think I am simply being mischievous, in 1999 the noble Lord, Lord Winston, argued,Male pregnancy would certainly be possible and would be the same as when a woman has an ectopic pregnancy—outside the uterus—although to sustain it, you'd have to give the man lots of female hormones".That opinion was later backed up by Dr Simon Fishel, director of the Centre for Assisted Reproduction in Nottingham, who said,there is no reason why a man could not carry a child".The Bill also criminalises women who, for one reason or another, are implanted with a cloned human embryo. That is an issue with which I hope the Minister intends to deal. I sought to tackle it by tabling an amendment to which we will come in Committee. But if a woman, through no fault of her own, was implanted in an IVF centre and did not know what the 33 nature of the embryo was, she could be subject to the 10-year prison sentence and fine contained in the Bill. Or she may have had a change of mind, having first been fertilised and later on changing her decision.
Another glaring omission from the Bill is its failure in defining the principal terms used, including what is meant by "human embryo" or "fertilisation". Those are not defined in the Human Fertilisation and Embryology Act. The Government overlooked the full significance, therefore, of Mr Justice Crane's High Court judgment and the scientific advances in this field which render many procedures outside the regulatory scope of the HEE Act and the Human Fertilisation and Embryology Authority. Parliament deserves a proper opportunity to think again about the law in this area but this rushed legislation squanders that opportunity.
Looking for a moment at the international perspective, the Bill fails to meet our obligations under Articles 2 and 14 (to be read in conjunction with Article 2) of the European Convention on Human Rights in that it permits a category of human life to be created that is destined for destruction through research and experimentation. Again, I hope that when the Minister replies he will clarify on what basis the compatibility statement has been signed on the face of the Bill. Furthermore, why does the Bill fail to set out the process for prosecution of the offence in Scotland?
As your Lordships can see, the Bill is flawed. The Government have not properly thought it through. We legislate in haste and repent at leisure. It compounds the mistakes made by the Department of Health in January and it would have been far more prudent to introduce a comprehensive Bill forbidding human cloning in all its forms.
It is also unnecessary to create cloned human embryos so as to extract their stem cells for use in clinical research and treatments. Astonishing progress is being made, as the right reverend Prelate said earlier, in the way in which diseases and conditions can be treated using adult stem cells. That stands in marked contrast to the absence of progress using embryonic stem cells. Last week, in the evidence heard by the Select Committee, it was stated that there had been no clinical treatments involving embryonic stem cells and that there had been few successes in animal models; that they are difficult to obtain as pure culture in the dish; that they are difficult to establish and maintain; that there are problems of immune rejection; that there is a potential for tumour formation; and that there is generic instability.
By comparison, adult stem cells avoid those problems with transplant rejection. Also avoided are the growing public health risks being demonstrated with embryonic stem cells. The serious and unpredictable medical risks include teratoma and teratocarcinoma formation (including hidden abnormalities) and the tendency towards unregulated growth. Those who, like the noble Lord, Lord Hunt, in last week's debate, speak of the "potential" of adult stem cells, should examine the current clinical 34 applications of adult stem cells and contrast that with the dearth of clinical applications for embryonic stem cells. In addition, those noble Lords who endorse the view of the committee of my noble friend Lady Warnock, that the embryo has a "special status", might like to reflect on the points I made earlier.
To conclude, while I support the prohibition of live cloning, the Government have failed to learn from their mistakes, railroading rushed and flawed legislation through Parliament. Restricting the ability of Members of both Houses to amend such legislation is dangerous from a medical-scientific perspective, and also from a procedural perspective. It demonstrates a contempt for the scrutinising role of Parliament. It subverts Parliament. Cloning human beings also carries awesome consequences for humanity.
This Bill fails to outlaw many practices that are repulsive and abhorrent. It will not create settled law but exhibits all the faults which have characterised the Government's earlier attempts at regulation. The prospect is that we will be back again on a regular basis every time someone like Severino Antinori comes up with an odious idea. How much better it would have been if we had worked with the grain of international opinion instead of pandering to the vested interests of the biotech industry. Only last week the European Parliament outlawed any funding, either for reproductive or therapeutic cloning. Almost all of our European neighbours share that view and the American Congress, by a majority of 100, outlawed the use of cloning for experimental purposes. We should have done the same.
§ 4.36 p.m.
The Lord Bishop of St Albans
My Lords, I am very aware that the dilemma in which we find ourselves today consists of legal, political and moral elements. As a bishop I do not necessarily have the competence to comment on the legal and political areas of this debate. But I should like, if I may, to express some concern about what I see as one of the moral dimensions.
I suppose one of the definitions of what makes a work of art "great", is that in its presence we experience what can only be described as a "shudder of recognition". It shakes us to our foundations, intellectually, emotionally and spiritually, and makes us reassess what life's purpose might be. For instance, I think of seeing Epstein's "Jacob wrestling with the angel" at the Tate Britain, or of listening to Bach's "B Minor". I get that same "shudder of recognition" when I come across a line of poetry that stops me in my tracks. For example, I think of St Augustine's yearning cry that echoes down the centuries:Late have I loved thee, beauty so old and so new, late have I loved thee".The "shudder of recognition" that those works of art elicit comes from an awareness deep within our souls that in their presence we are on the threshold of absolute beauty and absolute truth. We have to take our shoes from off our feet because the ground on which we stand is holy.
35 Those "shudders of recognition" can occur at the other end of the human scale; for instance, when we encounter appalling cruelty. The shudder then is a recognition of an existential abyss into which any of us can topple, either individually or collectively. There are other moments too when we experience the "shudder of recognition"; for example, when a moral issue seems so massive and so far-reaching that one can only approach it with patient awe.
I was present in the House for our debate on cloning in January and recall how strong was my sense that some of us were in too much of a hurry, too eager, too caught up in the heady delights of progress to be able to give our attention to the full implications of what we were debating. But today we are in an even greater hurry. Of course, I agree that the perceived loophole, if it exists, must be closed with extreme urgency. But our very haste, I venture to suggest, is a signal that we lack genuine clarity about the legal, political and moral implications of what we are doing in this entire cloning area. That may be due to three reasons.
First, we may have made too easy and too neat a distinction between therapeutic cloning and reproductive cloning. Who can possibly be against anything described as therapeutic? But is it not possible to imagine a situation in which a couple or an individual seek reproductive cloning on what they would genuinely call therapeutic grounds?
Secondly, we may be in too much haste and there is lack of clarity as we have ignored the fact that basic human characteristics such as greed or, less obviously but more potently, the lust for power, can be found as much in areas of medical research as in any company boardroom or, come to that, in any cathedral close.
Thirdly, we have become so seduced by our technological skills that the moral enormity of what we are doing and the sheer scale of our audacity have dwarfed and threaten to silence conscience, wisdom and that collective sensibility which alone ensure genuine moral freedom. I believe, however, that in this debate and in our nation there is a "shudder of recognition" that human reproductive cloning is inherently and absolutely wrong and must be prevented at all costs.
I believe that we shall do ourselves, our nation and the future no favours if we fail to realise that that "shudder of recognition" over human reproductive cloning must make us raise further questions about all kinds of cloning. What I hope we can create this day is a Bill which clearly and unequivocally forbids and prevents all reproductive human cloning in this country. But I also look for—and I am sure I shall be given a cast-iron assurance that when the Select Committee reports enough time will be allowed for a debate here and throughout our nation so that our moral sensibilities about the whole issue of cloning may be refined rather than be bludgeoned into submission by those with the political, technological or financial power to do so and who sometimes seem to regard what I have called "shudders of recognition" 36 as merely the over-excited reactions of our central nervous systems rather than gateways into the absolute which is at the heart of all things.
§ 4.43 p.m.
§ Lord Walton of Detchant
My Lords, when I first joined your Lordships' House in 1989 my baptism of fire, as it were, was my involvement in debates on the Human Fertilisation and Embryology Bill, as it then was. That Bill eventually became an Act with large majorities in both Houses of Parliament. Since that time it has been legal, under licence from the Human Fertilisation and Embryology Authority, to carry out experiments on human embryos up to 14 days after fertilisation. I think I can speak with authority in saying that that responsibility of awarding licences to only high quality research has been well fulfilled by that authority since that time.
That particular Act made it clear that such research would be involved only in, first, improving methods of human fertilisation and, secondly, in the prevention of human disability and disease. It did not include within its terms of reference the treatment of disease. But it did specifically preclude cross-species fertilisation, transfer of gametes and a number of other processes such as embryo splitting.
Today we are not debating the issues which were considered in depth during a lengthy debate in January on the regulations introduced by the Government in order to amend that Act to make possible developments of crucial importance in the treatment of human disease. Those procedures involved the use of spare human embryos, which became spare during processes of in vitro fertilisation, as a source of embryonic stem cells. During that debate we also considered the process of cell nuclear transfer not only for the creation of embryos but also for the prevention of mitochondrial disease.
Those are not issues which we are considering today as they are before the Select Committee of your Lordships' House chaired by the right reverend Prelate the Bishop of Oxford. I have no doubt whatever that the Government will make adequate time available to consider the recommendations of that Select Committee when the time arises. Today we are concerned solely with the question of whether this House should pass a Bill to proscribe, to ban and to make illegal reproductive cloning, rather than therapeutic cloning which relates to the use of stem cells derived from embryos created by nuclear transfer. Like my noble friend Lord Alton, I wholly agree—as the noble Baroness, Lady Warnock, stated in her original report—that the human embryo must be treated with great respect. However, I disagree with him when he talks of the killing, discarding or degeneration of human embryos, bearing in mind the fact that millions of fertilised ova and human embryos which never implant in the wall of the uterus are flushed down the toilet every day in the course of normal human fertilisation.
But let me return to the primary purpose of the Bill which is to ban the process of cloning of a human embryo by cell nuclear transfer and its subsequent 37 implanting in the uterus of a woman. That is the sole purpose of the Bill. Many powerful speeches have been made today on both sides of the House. I particularly refer to the powerful speeches of the noble Lords, Lord Brennan and Lord Winston. I strongly agree with the views that have been expressed. I believe that the process of attempting to clone an identical human being is not only morally but also ethically repugnant. For that reason the objectives underlying the Bill are ones which I wholly support.
But equally I could not support any attempt to extend the Bill to therapeutic cloning produced by cell nuclear transplantation. I agree that there are problems in that field, but, as many other noble Lords have said this afternoon, the hopes that may arise for the treatment of diseases from the development of stem cells from such a source are huge. However, as the noble Lord, Lord Winston, said, the problem of genomic imprinting, the fact that it took 277 attempts before Dolly the sheep could be cloned and the problem that such a process might well lead to major abnormalities in the foetus or in the individual so produced are so huge that reproductive cloning must be banned. In the meantime work on therapeutic cloning has to be carefully examined by research workers and carefully controlled. I have no doubt that this issue will he examined in the report of the stem cell committee chaired, as I said, by the right reverend Prelate the Bishop of Oxford.
Adult stem cells provide a considerable prospect for research in the future, but all the scientists to whom I have spoken who are deeply involved in this research are absolutely confident that at the moment the flexibility and potential of adult stem cells is considerably less than that of embryonic stem cells.
In an attempt to try to overcome a problem that I saw in relation to this Bill as it stands, I tabled an amendment that we shall have an opportunity to discuss later today. A gamete is a reproductive cell; the male gamete is the sperm and the female gamete is the ovum. When the two are combined they form a zygote, which is an embryo. The difficulty that I saw related to the legal judgment in the High Court on 15th November, in which the judge concluded that an embryo produced by cell nuclear transplantation was not an embryo in accordance with the terms of the 1990 Act. However, I have now learnt that that particular conclusion of mine was not correct because the judge referred solely to embryos produced by fertilisation and did not refer to an embryo produced by cell nuclear transplantation.
My amendment attempts to define the embryo relating to this particular Bill as a female gamete modified by nuclear transplantation. However, since tabling the amendment I have realised that there are means other than nuclear transplantation whereby in the future embryos may be created. One that is emerging as a result of animal research is so-called parthenogenetic production of embryos from which stern cells can he produced through various methods of manipulation of the female ovum. Therefore, my 38 amendment would not meet that particular objection, so at the appropriate time in Committee stage I shall not move it.
I believe that this Bill, short though it is, is one that we in this House must support. It is crucial that we should ban reproductive cloning. Although the wording of the Bill is brief, I believe that it is sufficient to cover and to include all presently known and presently predicted processes of so-called reproductive cloning; for example, the production of identical human beings. For that reason I warmly commend the Bill to the House.
§ 4.52 p.m.
§ Lord Rea
My Lords, like the Bill I shall be brief. My noble friend has explained its single purpose which again has been clearly outlined by my noble friend Lord Walton: that is, to stop—I was going to say embryos but perhaps I should say early humans, although people may say that they are not humans yet until a primitive streak is laid down—early human creations that are formed by cell nuclear transfer, being implanted in a woman's uterus with the implied intention of allowing that embryo to develop into a human foetus and infant. The dangers have been fully outlined by my noble friend Lord Winston and to some extent also by my noble friend Lord Walton.
On the other hand, an embryo produced by fertilisation of an ovum by a spermatozoon can still be implanted but, of course, it would be subject to all the regulations and requirements of the Human Fertilisation and Embryology Act 1990, supplemented by the Research Purposes Regulations laid down earlier this year and overseen by the Human Fertilisation and Embryology Authority (HFEA) as my noble friend Lord Walton has outlined.
The need for this short Bill to he given an accelerated passage through your Lordships' House is the judgment of the High Court 11 days ago. That judgment brought to light a loophole in the legislation that would allow human reproductive cloning to be attempted by doubtful enthusiasts, such as Professor Severino Antinori, who, shortly after the court's decision, announced his intention to head for Britain soon to set up a clinic. The noble Baroness, Lady Walmsley, may be right in saying that he could not possibly set up that clinic before the Select Committee of your Lordships' House has reported nor before other legislation has been considered that may arise from that report. However, as she admitted, she could be wrong and it would be wrong of the Government to take such a risk.
This simple Bill has one purpose, which is to stop such activities. It is, of course, possible that further legislation may be necessary after the Select Committee has reported, and possibly after the Government's appeal has been heard. As science develops and new techniques become possible, further legislation may be required. That may answer some of the fears of the noble Lord, Lord Alton.
Today's news of the creation of a cloned human pre-embryo—consisting so far of only six cells—by the privately financed biotech company, Advanced Cell 39 Technology, in Worcester, Massachusetts accentuates the need for this Bill, although in this case the scientists concerned state that they have no intention of implanting that particular embryo to allow full development—I am again probably mis-naming the cells as an embryo.
It would be wrong to delay or to extend the scope of the Bill, which is quite specific and urgent. With respect to noble Lords who have laid down amendments, I believe that my noble friend will be able to reassure them that they are not necessary, so that this Bill can go through, unamended, to the other place. I support the Bill and hope that it has a speedy passage.
§ 4.57 p.m.
My Lords, like the Bill, I too shall be short and precise. Unfortunately, some statements have been made on which I feel a need to comment. I strongly support the Bill. I believe that it is timely, appropriate and proportionate. Reproductive cloning is wrong for all kinds of reasons which I shall not rehearse again as they have been addressed already by the noble Lords, Lord Brennan and Lord Winston.
The Bill prevents the implanting into a woman of an embryo that has been created by a means other than fertilisation of gametes. Therefore, I believe that it is all encompassing, which is right. I was pleased to hear my noble friend Lord Walton of Detchant suggest that his amendment may not be correct.
However, the Bill does not prevent the very necessary research on stem cells—adult and embryonic—including on embryonic stem cells following cell nuclear replacement, or genomic transfer. I believe that is also right. Unlike my colleague the noble Lord, Lord Winston, I am not associated with any stem cell research, but I chair the Medical Research Council's Genetic Advisory Committee, so I am familiar with the current state of stem cell research.
The debate today is not about research, but about principles—about whether human reproductive cloning should be allowed. No serious scientist wants to see that happen; neither, I believe, does the wider society. The other side of the debate is whether it is morally and ethically right to permit any research on very early embryos obtained following fertilisation or following cell nuclear replacement technology.
I respect those views but serious scientists working in this area are clear: research on embryonic stem cells holds the greatest promise of delivering treatments for very serious diseases, including congenital abnormalities, degenerative diseases, endocrine diseases, cancers and others. I also believe that the majority of the public and those organisations which represent patients understand and approve the need for such research, especially in a regulated and controlled environment.
We can discuss whether or not research in adult stem cells has progressed to a stage where embryonic stem cell research is necessary. So far, it clearly has not. The research is very preliminary and is not that promising. Adult stem cells are older and, therefore, have shorter 40 life spans. They require manipulation in order to extend their life. They have limited specialisation. They are already in organs and cannot easily be turned into other cell types. Also, they can be obtained only in small numbers. Half an adult brain would be required in order to gather sufficient neuronal stem cells.
Despite those limitations, adult stem cell research must continue. The ultimate goal should he the ability to use adult stem cells for all cell types. We should aim to reach the stage where we dedifferentiate adult cells so that they have the potential to behave like embryonic stem cells and are able to form all cell types. That is the aim, but how shall we learn to do that? We shall do so only if we continue the fruitful research on embryonic stem cells.
Unlike that relating to adult stem cells, embryonic cell research is more recent and therefore less is known about it. Adult stem cell research is nearly two decades old. Despite that, we have learned much from animal embryonic stem cell research, mainly from experiments on mice but also from those on other animals. Unlike adult stem cells, embryonic stem cells can form over 200 cell types. They exist in large numbers. In fact, they can probably form all cell types in the body. They can form the biological cell types of entire organs. They are at the headwaters of development and are capable of making every cell type downstream. Embryonic stem cell research is the only means of understanding cell differentiation. That is why we should allow it to take place.
I turn briefly to the subject of cell nuclear transfer and genomic replacement. I shall set out why I believe that it is necessary to allow such research to continue at present. One of the key reasons—there are others—why there is a need to allow research on embryos following cell nuclear transfer is to understand the mechanisms involved in tissue rejection and to solve the problems of immune matching. Therein will lie our ability to conduct stem cell replacement treatment without patients having to take immuno-suppressive drugs for the rest of their lives, with the obvious consequences that ensue from that.
It is clear that all stem cell research—adult and embryonic—is necessary. I support the Bill and I hope that the House will pass it swiftly.
§ 5.4 p.m.
§ Lord Turnberg
My Lords, I hope that your Lordships will forgive my continuing this onslaught by doctors—I see that I am the fourth in line. Since 1990 the Human Fertilisation and Embryology Authority has carried out its work impeccably. It has strictly regulated and licensed what research can be done and how it should be done. During the whole of that time it has drawn no criticisms that it, or the medical scientists who are carrying out the research, has behaved improperly.
The facility to control research on human embryos has become the envy of the world as other countries try to grapple with the ethical and scientific dilemmas posed by advances in the bio-sciences. I am sure that 41 that has something to do with the confidence that your Lordships had in extending earlier this year the reasons why research on human embryos could be performed to include stem cell research for adult diseases.
It is the case that any researcher foolhardy enough to seek a licence to undertake reproductive cloning in the UK would have been turned down at any time during the history of the HFEA. If researchers had persisted in doing so without a licence, they would have committed a criminal act. The Government said that they intended to strengthen the legislation in this area. However, in its wisdom, the High Court has ruled that a cloned embryo is not an embryo so far as concerns the HFEA, and it has left a loophole which needs to be closed. It is obvious that the prohibition of human reproductive cloning has the support of the whole House. I echo the wise words of my noble friend Lord Winston about the dangers of human reproductive cloning and the time-scale involved in terms of its advances.
However, we should not now be using this opportunity to revisit the whole debate about research on human embryos in general and on stem cells in particular. The case for embryonic stem cell research remains the same as it was early this year; namely, carrying out research which has the potential to give relief to sufferers from a wide variety of diseases while, at the same time, preserving the special dignity that must be afforded to human embryos by close regulation within a clear legal framework.
That, I believe, is what we achieved with the Human Fertilisation and Embryology Act and what, I hope, the Select Committee will endorse. Once we move away from a clear-cut ban on reproductive cloning, we move into very unclear waters. For example—perhaps noble Lords will forgive me if I become a little biological here—we know that every nucleus in every cell of the human body carries a copy of all the genes which are necessary to reproduce that individual. Stem cells, whether derived from adults or from embryos, can and do transmit their characteristics to their cellular offspring. Viewed in that light, stem cells formed from an adult nucleus, whether that nucleus has been transplanted into an empty egg cell or simply from the adult cell itself, have similar potential from an ethical point of view, even if scientifically they may behave differently.
Given that, it seems so much more important to ban reproductive cloning, however it is achieved—there may be many ways in which it can be done—and to leave embryonic and adult stem cell research to continue.
§ 5.8 p.m.
§ Baroness O'Neill of Bengarve
My Lords, as a member of your Lordships' Select Committee on stem cell research, I shall say, for obvious reasons, nothing about stem cell research. We have only just finished taking evidence. That may, of course, help me to stay rather nearer to the subject of this Bill because it is not about stem cell research.
42 I believe that I can only add to the debate, to which I have listened with enormous interest, a suggestion that it is not entirely obvious that emergency legislation is needed to ensure that reproductive cloning is prevented. The need for haste supposedly arises as a result of the High Court judgment of 15th November in which Mr Justice Crane held that the HFE Act 1990 should be interpreted strictly as applying only to embryos produced by fertilisation. The perception of urgency has, of course, been heightened by the excitable Dr Antinori, who states that he will come to the UK to clone a human embryo. I believe that in the wake of the High Court ruling and even without the passage of this Bill he might find the UK regulatory system to be less than helpful. Legal advice to the Government gave the impression that there was more to prevent him than the High Court ruling suggests. I take it that it was entirely reasonable for the Government to rely on that advice. What else can they rely on until the matter has been tested before the courts?
Before the birth of Dolly, the courts would probably have viewed the process that was used to produce her as being impossible. After her birth, there was an awareness that there might be a problem with the definition of an embryo in the legislation. Nevertheless, the legal advice was that that was not material.
The recent judgment seemingly removes the protection of the 1990 Act from organisms that were produced by nuclear replacement. They are held not to be embryos, as defined in the Act, despite their apparent functional equivalence. It is ironic to reflect that that action was brought by a group that was committed to the protection of the human embryo and which regards the organisms that are produced by cell nuclear replacement techniques as embryos. Even if it was thought that the Act offered defective protection, the received interpretation was a massive deterrent to anybody who was tempted by reproductive cloning. One might have supposed that the Pro-Life Alliance would have judged it important to wait until the promised legislation preventing reproductive cloning—or more—was in place before it sought to challenge the 1990 Act.
Seen with hindsight, the defect in the 1990 Act is that it uses a two-part definition of the embryo. Comparable defects have often been revealed by the progress of science: it was once common to define mammals as viviparous animals that suckle their young. Then the inconvenient duck-billed platypus challenged the definition by turning out to be an egg-laying animal that suckles its young. In the Act the embryo is identified, albeit only implicitly, by its purpose or function as an organism that may, if implanted successfully, develop into a foetus, a child and ultimately a full person. On the other hand, it is also identified by its origin in fertilisation. If both criteria must be satisfied for the Act to apply, as the High Court has held, organisms that are functionally equivalent to embryos that are created by fertilization, but which are not created by fertilisation, are not embryos for the purposes of the Act.
43 It is tempting to think that the response should have been for Parliament to revisit the 1990 Act on a wider front and rapidly to provide a revised definition of the embryo. I believe that that task may be quite complex. However, since I do not wish to go near to any of the topics with which the Select Committee is dealing, I simply suggest that even without this Bill the 1990 Act still provides substantial protection against human reproductive cloning and against some other possibilities.
Even if the High Court's ruling is upheld and the HFEA no longer has jurisdiction over organisms that are created by cell nuclear replacement, there is protection because cell nuclear replacement is not a free-standing technique—although it bypasses fertilisation, it requires a human egg. Section 4(1)(a) of the 1990 Act prohibits those without a licence from storing human gametes; that is, human eggs and sperm. Moreover, Section 41(2)(b) makes it an offence to contravene Section 4(1)(a). The further use of human gametes either for infertility treatment or for research is well within the control of the HFEA, and the Act explicitly provides in paragraph 2(1) of Schedule 2 that a licence for infertility treatment cannot be given,unless it appears to the Authority to be necessary or desirable for the purpose of providing treatment services".The authority has given a clear undertaking about what its view of reproductive cloning is. Even if the Bill were not passed—from what we have heard so far, I imagine that it will be—I do not think that Dr Antinori could take advantage of UK regulations and clone a human being in this country. Of course, in the longer run the declared policy of a statutory body is not guarantee enough; but we do not—and did not—need to panic. I support the Bill.
§ 5.14 p.m.
§ Baroness Blatch
My Lords, the Bill, so far as it goes, should, and I believe will, be supported by the House today. However, it is not consistent with the High Court judgment and it does not go far enough.
It is practically eleven months to the day since we last debated the use of human embryos and the related subject of cloning. Back in January, I called for more time in which to consider this important ethical issue, and I do so again.
The High Court judgment cannot have come as a surprise to the Government. So many Members of this House and a number of experts outside it advised consistently that the creation of embryos by cell nuclear replacement was not covered by the 1990 Act. The new scientific procedure was not envisaged—it was not even contemplated—during the debates preceding and during the passage of the 1990 Act. Those points were put most forcefully when the Government placed a regulation before Parliament under the authority of the 1990 Act—they did so wrongly, as it transpired. To argue, as the Association of Medical Research Charities has, that Parliament has had a full opportunity to debate and determine the issue, is simply untrue.
44 There was no parliamentary scrutiny through the Bill procedure, the regulation was unamendable and it was taken in one day. The House was persuaded to approve the regulation on the advice of the Minister, who made unequivocal statements during that debate. He said:The position is simple. Reproductive cloning will not take place in the UK and these regulations cannot in any way make it happen. I say to the noble Baroness, Lady Williams, that legislation will be brought before the House as soon as possible".We already know that the promise to do so without delay was not honoured. In that debate, I pointed out that, according to the Minister,reproductive cloning was illegal and would remain illegal",and I asked:What then is the purpose of the Bill to be brought before Parliament?".The Minister replied,as I explained earlier, reproductive cloning cannot take place in this country because the authority has said that it would not, under any circumstances, license that. For any organisation or person to go ahead and attempt to do so would be in breach of the law that lays down those requirements".—[Official Report, 22/1/01; cols. 117-18.]Parliament has not considered, through the normal parliamentary Bill procedure, the issue of CNR techniques either for human cloning or for therapeutic purposes. The Bill offers prohibition—important though that is—only against the placing in a woman of a human embryo that has been created other than by fertilisation.
I welcome the Government's desire at last to make it certain once and for all that human reproductive cloning is illegal in this country. However, as I have just explained, we had reassurance from the Government in January that reproductive cloning was illegal and that a Bill would be introduced to put the matter beyond doubt. It turns out that because of the High Court judgment of 15th November reproductive cloning is not governed by the law.
I turn to the judgment. The Government's Explanatory Notes, which accompany the Bill, state that that judgment,held that embryos created by cell nuclear replacement were not governed by the Human Fertilisation and Embryology Act 1990. As a consequence the Human Fertilisation and Embryology Authority could not implement a ban on reproductive cloning by refusing to licence any application for this purpose".After all of the Government's reassurances that cloning in all its forms was covered by the 1990 Act, Parliament should have been given sufficient time to debate all the implications of the judgment.
As I have already said, I welcome the Bill so far as it goes, but I do not believe that it goes far enough. First, it refers only to placing an embryo in a woman. The prospect of embryos being placed in animals was recognised as a reality in 1990 and specifically outlawed in Section 3(3)(b) of the Human Fertilisation and Embryology Act 1990. No similar provision exists in this Bill.
Secondly, the Bill does not stop a cloned baby being developed in an artificial womb—or even in a man, should science allow such a thing. We know that that 45 is possible in animals. The Bill does not stop a cloned embryo from being created in this country and taken abroad for placing in a woman. The Sunday Times yesterday had an article entitled,British expert may join bid to clone human",and it suggested that there would be collaboration with Dr Antinori to do exactly that. Therefore, the self-publicist Dr Antinori could achieve his ends without even coming to the United Kingdom. The noble Baroness, Lady Gould, talked of the danger of Dr Antinori threatening to start the process of human reproductive cloning in a matter of three months. Under the Bill, even when passed, he will be able and free to start the process unlicensed and unregulated.
The Bill introduces an offence of placing in a woman an embryo created by means other than fertilisation. While that may seem a simple offence, it begs many questions. I should like to ask the Minister how that offence will be policed. How will we know that such an offence has taken place, given that this appears to be outside any regulatory framework? Who is covered by the offence of placing? Is it the person who places the embryo in the womb or someone involved in preparing the cell nuclear replacement process? What is a human embryo for the purposes of the Act? If an embryo is created using an animal egg and a human donor cell, will that be covered?
I referred earlier to the Explanatory Notes. They fail to mention that as a result of the judgment, the HFEA cannot license any work on cloned embryos for research purposes. That means that any experiments can be done on human embryos created by cloning without any boundaries or limits. There will be disagreement between us on whether or not embryos should be used for research. Like the noble Baroness, Lady Walmsley, I agree that that is not the point of the Bill.
Legislating to stop human reproductive cloning acknowledges that cloned embryos can become fully human babies, yet there will be no protection for those same human embryos if they are used for research on stem cells. That is unacceptable. It creates two classes of embryo—one regulated and one unregulated—as well as raising practical questions. For instance, how long will the embryos be kept before being destroyed? What happens after the 14-day limit on research that is applied to embryos created by IVF? What consent will be obtained to create the embryos? If there is no regulation of the embryos and they grow beyond the embryo stage to a foetus, would it be illegal to implant a foetus?
The noble Lord, Lord Walton of Detchant, in his contribution to the debate, stated—I expect that I shall paraphrase him badly; I tried to take notes—that the process of creating a clone with the potential for making a human being is abhorrent. We all agree with that. However, under the Bill, if passed, it will be possible to engage in the process. It is only implantation that is outlawed. Parliament has recognised that the human embryo has a special status, but the Bill affords cloned embryos none. There should be at least the same protection given to cloned embryos as to embryos created by IVF.
46 I understand that the reason there is no reference to embryos is because the Government want to appeal against the High Court judgment. That route is open to the Government, but in the mean time there is no protection for human embryos created by cloning. Surely with integrity the Government could introduce a Bill to ensure full protection of all cloned human embryos which could be amended at a later date, after the appeal date and after the Select Committee has sat. That would allow time for proper thought. In the mean time, embryos can be created here to be used for reproductive cloning elsewhere. Will Britain be the market-place for those countries which will not agree to ban reproductive cloning?
The Government are introducing the Bill to meet our international obligations. Much of the international community agrees that there should be a ban on reproductive cloning, but it should be done thoroughly and with proper scrutiny to ensure that all the loopholes really are closed. I have highlighted some of the serious flaws of the Bill which need addressing, and which we should be able to address. But the undue haste with which the measure has been introduced means that we cannot. In January, many of your Lordships felt that we were given insufficient time to debate the important issues before us. At that time I said,To deal with all these issues in an unamendable order is an affront to the democratic process". [Official Report, 22/1/01; col. 31.]I say the same today. This debate is an affront to the democratic process. Noble Lords will see amendments on the Order Paper, but they do not cover the number of issues which I believe need to be addressed to put the Bill right. Why not? It is because we have been advised by the Public Bill Office that amendments other than those we shall debate later tonight are not within the scope of the Bill and therefore are deemed not relevant. The general public would be horrified to know that amendments that could be the subject of debate and which within the grounds of common sense are relevant cannot be debated here today simply because of government diktat.
Some of these issues have been the subject of evidence to the Select Committee on stem cell research, to which the House agreed in January. There are important issues at stake. Although the right reverend Prelate the Bishop of Oxford said that a body of information on adult stem cell research has been read by the Select Committee, I am concerned to hear, which I believe to be the case, that no scientists working on adult stem cells have been called specifically to give evidence on their own merits. How can that be a fair hearing?
I am also concerned to learn that Professor Chris Higgins, the committee's scientific advisor, is on the academic board of the Tissue Engineering Centre at Imperial College, alongside the noble Lord, Lord Winston. I am sure that the House would agree that it is hard to see how that can be seen as impartial advice when the centre is working on embryonic stem cells. As the noble Lord, Lord Brennan, commented earlier, perception and public confidence in bio-science and 47 technology is important. Given the direct interest of the scientific adviser to the committee in cloning using CNR, my confidence, at least, has been sadly diminished.
I shall not oppose the Bill. As we said in January, human reproductive cloning should be outlawed. The Government argued with apparent certainty at that time that it was already illegal. Therefore the court decision and the temporary change of heart on behalf of the Government, albeit late in the day and falling short of what is needed, is nevertheless welcome. On such complex scientific issues we need time to reflect on what the Government will say in response to this evening's debate. However, we shall not have that time. We can only hope that members of the other place will have the opportunity to study what is said in the debate in this House before they discuss it later in the week.
It is certain that the House will have to return to the issue of the introduction, regulation and licensing of cloning using CNR techniques. I hope that it will not be said that we have discussed the issues at length on a number of occasions. All discussions have been conducted in a framework of a straitjacket of unamendable and almost unamendable legislation.
In conclusion, last week in a potent leader, the Daily Telegraph stated:The new Bill will almost certainly not ban human cloning as Ministers claim, but merely the implantation of cloned embryos in the womb. The cloning of embryos solely for research, and their export, would remain legal and unregulated".That was followed by an article in the Catholic Herald, which I received today, which stated:one might have expected extremes of caution never before envisaged when Parliament decided to deal with legislation involving the building blocks of human life.Not this Government. It simply pushed its imperious steamroller ahead in the face of the best legal advice in the country, and it is now promising to do the same again".
§ 5.28 p.m.
§ Baroness Lockwood
My Lords, this is a narrow and tightly drawn Bill with a narrow and specific purpose; namely, to fill a gap identified in the 1990 Act by the judicial review. It is not intended to be a comprehensive Bill addressing the various issues raised by the noble Lord, Lord Alton, and others, many of which, as the noble Lord, Lord Walton, indicated, had been carefully considered in the passing of the 1990 Act. Nor is it an occasion to raise issues about a report which the Select Committee has not yet published. I understand that it has not even begun to draw up its report.
The issue before us today is different from the subject of debate on 22nd January last when the House was deciding whether or not to extend the areas in which research on human embryos could be permitted under the 1990 Act, albeit in a way provided by that Act and in the light of developments in stem cell research.
48 I understand the deep concerns and the need to balance ethical and moral considerations with a possible advancement of medical science which results in the relief of much human suffering from a whole range of hitherto incurable diseases. But today the issue is surely much simpler. It is to restore the law to what it was assumed to be; namely, that the cloning of a human being is an offence under the 1990 Act and is thereby banned. That is a principle on which there is unanimity within this House, in the other place, and, apparently, in the country as a whole. We are all agreed that human reproductive cloning is abhorrent.
It is interesting to read the 15th November judgment of Mr Justice Crane and his summary of events since the report of the Warnock committee. Although the science was not sufficiently advanced at the time of the Warnock committee report, nevertheless it envisaged possible scientific advancement being such as to enable the cloning of a human being. Both the White Paper that followed and the government Bill—subsequently the 1990 Act—intended to outlaw such a possibility.
The report of the Donaldson committee in 2000, the Government's response to that report, and the 1991 regulations, all, as the judge indicated, proceeded on the basis that embryos created by cell nuclear replacement were governed by that Act. On the basis of the judge's literal interpretation of the 1990 Act, he concluded that it did not cover embryos created by CNR. He ruled accordingly.
The ruling leaves a gap in the legislation. The Government have correctly moved quickly to fill the gap. It is of the utmost importance that action is taken immediately to avoid uncertainty, leading to undue concern among people generally, and to prevent the possibility of rogue scientists at home or abroad trying to take advantage of the temporary situation in this country.
So far, media comment on the judicial review has been modest. However, following yesterday's announcement of further advances by American scientists, one can imagine some panic, especially as we recall both media and public reaction in 1997 when the cloning of Dolly the sheep was made known. There was, and still is, a real concern among people about the perceived possibility of cloning a human being. To be seen clearly to rule that out by law will do much to allay those fears. I agree with the noble Baroness, Lady Warnock, and my noble friend Lady Gould, that the Government must deal with the issue quickly.
I do not believe that, in general, the public are opposed to medical scientific advancement. On the contrary, they welcome continuing progress to find new cures for diseases and disorders. But they want to be absolutely certain that new knowledge is not used for wrong or ill purposes.
Some noble Lords have argued that there is no need for today's speedy action; that we should await the report of the Select Committee, chaired by the right reverend Prelate the Bishop of Oxford, and the Government's appeal against the judgment. Similar types of delaying arguments were put forward in January about the proposed regulations. We have 49 heard them repeated today: that we should await more comprehensive legislation by the Government and review the whole situation. Why should we wait? There can be only one reason: to turn the clock back and to limit or prohibit all research on embryos. I reject that completely. Modern science is advancing very rapidly, as we all agree.
It may be that we shall have to amend the 1990 Act and its regulatory procedures from time to time. I do not object to that. It is necessary to review and amend legislation if it does not meet the needs of the day. A thorough review following the report of the Select Committee and the outcome of the appeal against the judgment will be justifiable and will in the usual way be a very thorough one in your Lordships' House. However, in the mean time a gap has been identified in our legislation and the only proper course of action for the Government and for this House is to fill that gap. I wholeheartedly support the Bill before us.
§ 5.37 p.m.
§ Baroness Sharp of Guildford
My Lords, as the noble Baroness, Lady Lockwood, has said, this is a brief and narrowly drawn-up Bill with a specific purpose; namely, to prohibit human reproductive cloning.
So far as concerns the Liberal Democrats, in our 1999 policy paper we argued in favour of specific regulation prohibiting human reproductive cloning. During the debates on the regulations—in the early part of this year and on 22nd January—we called for specific legislation. The Government assured us that regulation of all forms of cloning was covered and indeed prohibited under the terms of the Human Fertilisation and Embryo Act and that there was no possibility that human cloning could go ahead.
Nevertheless, we repeated our call for specific legislation. We wanted to hear in the Queen's Speech that legislation on the matter was to be brought forward by the Government. Had that been so, we might not have found ourselves in the position that we are in today of having to push through very hurriedly and hastily a Bill to which we cannot give due consideration at this time. The guillotining of the Bill by both this House and the Commons is one that offends the standard of democracy of this House. It is one to which we as a party object.
Nevertheless, the Government have been caught out by the court judgment of 15th November. That judgment says that because fertilisation is not involved the process and products of cell nuclear replacement fall outside the regulatory framework of the Human Fertilisation and Embryology Act. Does that matter? Do we need regulation now? I repeat the phrase—they fall outside the regulation of the Human Fertilisation and Embryology Act.
The noble Lords, Lord Winston, Lord Walton of Detchant and Lord Turnberg, have all told us firmly, and we fully accept, that the science is still at an early stage and that we are a long way from experiments in cell nuclear replacement and the implantation of embryos working. We are nowhere ready to proceed with human reproductive cloning in that sense. As my 50 noble friend Lady Walmsley said, Antinori blows his own trumpet extremely loudly. The noble Baroness, Lady O'Neill of Bengarve, said that he would find far more difficulties with existing regulations in this country than he implies when he says that he is just waiting to come to Britain to perform cloning.
Nevertheless, there are grounds for supporting the Government's hasty legislation. The noble Lord, Lord Brennan, warned us that if experiments proceed, the results could be horrific—partly because the science is still so new. It is vital for us to retain confidence in science if we want to proceed with therapeutic cloning. As the noble Lord, Lord Turnberg, said, we rightly have considerable faith in the Human Fertilisation and Embryology Authority. It is internationally regarded as exemplary in its regulation of the area. It has led to advancement of science in this country that has not been equalled elsewhere. If we want the public to have confidence in science, we must have confidence and pride in the regulatory framework. The problem posed by the 15th November judgment is that there is no regulatory framework for human reproductive cloning based on cell nuclear replacement.
As my noble friend Lady Walmsley said, we have considerable reservations about the Bill as drafted. For example, we are surprised that it does not accord the embryos created as a result of cell nuclear replacement the same protection as other embryos are accorded under the Human Fertilisation and Embryology Act 1990. Nevertheless, our view is that the Bill should pass, and we will back it. That does not imply that we are entirely happy with the procedures or believe that the Bill is sufficient, but we are encouraged by the fact that we know that the Select Committee will shortly be reporting, that much more comprehensive legislation is likely to follow and that loopholes in the Bill can be filled then. We support the, Bill as a stop-gap measure. We on these Benches look forward to the Select Committee report and the opportunity that it will provide to consider much more comprehensive legislation in the area.
As I said, we object to the haste with which this short Bill has been pushed through. Had we been listened to earlier, it would not have been necessary. But we understand why the Government now feel obliged to legislate to plug the loophole that has appeared. For that reason, we shall support the Bill, but we see it as a stop-gap, and look forward to a much more considered piece of legislation in due course.
§ 5.44 p.m.
§ Earl Howe
My Lords, for the second time in fewer than 12 months, we find ourselves debating questions that are as sombre as they are deep—questions about the engineering of human life and the nature of human personal identity. None of your Lordships can fail to be profoundly reflective and serious in the face of such matters. In January, when we considered stem cell research, a spirit of reflection and seriousness went hand in hand with a diametric polarisation of views. I venture to say that in this debate, unlike that one, opinion on at least the central issue is united.
51 The Minister, in his characteristically clear way, explained the content of the Bill and why the Government feel compelled to bring the measure before us in such rapid order. Emergency legislation is never welcome. By its nature, it can only be a consequence of some severe national threat: the "imminent perils" referred to by tradition in the Peers' Writ of Summons. Emergency legislation is unwelcome in another sense. As my noble friend Lady Knight reminded us, we are all only too well aware of the risks of legislating in haste. In such circumstances, realism must be combined with caution. The nature and extent of the threat must be precisely defined. If there are alternatives to hasty law-making, they should first be pursued.
Having listened to the Minister, who has been kind enough to brief me privately, I am convinced that the Bill is wholly necessary, and that the Government had no option but to bring it to Parliament as rapidly as possible. There may be legitimate arguments, as we have heard today, about whether Ministers might have acted earlier and in less haste, and whether the scope of the Bill is sufficiently wide. But if we ask ourselves whether reproductive cloning is an appropriate matter for emergency legislation, there can be only one answer, for we are dealing with that most urgent matter of all: literally, a matter of life and death.
While it is a commonly agreed position that human reproductive cloning is an ethically abhorrent notion, I have read little analysis in print of the underlying philosophical arguments. It is important that those arguments do not go by default. For that reason, the House is indebted to the right reverent Prelate the Bishop of Oxford and the noble Lord, Lord Brennan, for articulating the Bill's ethical underpinning with such clarity. We must remind ourselves that there are those, quite apart from Professor Antinori, who seek to justify human reproductive cloning for infertile couples in the same terms as they might justify assisted conception by in vitro fertilisation.
A recent press release from the Human Cloning Organisation mentions,the fundamental rights and liberties of a minority groupand refers to the Bill as a limitation of,reproductive choice and freedom".A ban on reproductive cloning is seen as,the logical equivalent of enforced sterilisationfor,those that want nothing more than a genetically related family".The language that attempts to justify reproductive cloning in such terms is one that treats children as commodities and subordinates the basic rights of such children to the demands and desires of childless couples who want to become parents.
Reproductive cloning has no claim whatever to any moral equivalence with in vitro fertilisation. That is not simply because of the scientific risks associated with the technique—significant as those are—but because reproductive cloning, if successful, would result in the creation of an individual deprived of two fundamental 52 rights that, I dare say, each of us has up to now taken for granted. Those are the right to have a genetic father and mother and the right to a genetic identity of one's own, separate from that of any adult already living. Those rights are—or should be—as inalienable as any in our constitution. They go to the heart of what we mean by human dignity and what it is to be an individual. A society that permitted reproductive cloning would be one that failed to value the uniqueness and equality of each of its members.
Those are the reasons why we have a duty to support the objectives of the Bill and why I, for my part, intend to vote in favour of it. But not for a minute do I want to overlook the concerns expressed by a number of noble Lords about areas in which the Bill may be deficient.
The Minister needs to make it clear to the House why the Government are not proposing to address the recent High Court judgment in its totality by bringing forward regulation of all procedures involving cell nuclear replacement. He said that the judgment is currently the subject of appeal and that the conclusions of the committee chaired by the right reverend Prelate the Bishop of Oxford should he awaited.
Those are arguments of pragmatism, but they beg the question of risk. It cannot by any standard be satisfactory that cell nuclear replacement as a process falls completely outside the scope of the current law. Whatever view we may individually take of the ethics of stem cell research involving CNR. whether we are for or against it, we must all be left profoundly disquieted that there is currently no means in law by which it can be regulated.
When we debated these issues in January this year, most of us believed that cell nuclear replacement had been regulated by the 1990 Act. That turns out not to be so. There were those, such as my noble and learned friend Lord Rawlinson, who in January told us in the clearest of terms that it was not so. While my noble and learned friend is entitled with some pride to say, "I told you so", I suspect that he will agree that it is not the most pressing aspect of the circumstances which now confront us. Much more important is whether there is a practical risk that some person in this country will undertake CNR without let or hindrance from the law.
The answer to that question seems once again to be a pragmatic one: that it would take a licensed research centre to engage in such work and that no licensed centre would want to jeopardise its status as a suitable practice by doing so. As arguments go, that does not seem to be a strong one.
If it is correct that the handling of human eggs outside the body is still subject to regulation under Clause 4 of the 1990 Act, it is clearly an important safeguard. I hope that the Minister can confirm that my understanding of that is right. However, I wonder whether in practical terms the bar on experimenting with unnucleated and renucleated eggs is as robust as all that. I should be grateful if in summing up the Minister could go into more detail on that issue.
53 We may find that we need to accept the Government's view of the matter and await the Court of Appeal judgment. If so, we need at the very least an assurance from the Minister that should the Court of Appeal confirm the recent judgment of the High Court, and the scope of the 1990 Act was thereby regarded as legally settled, legislation governing cell nuclear replacement and its use in stem cell research would be brought before Parliament as a high priority, taking into account the conclusions of the committee chaired by the right reverend Prelate.
I hope, too, that the Minister will be in a position to cover some of the real concerns voiced in the debate. It would be helpful if he could tell us what legislation, if any, is proposed in Scotland. The Explanatory Notes state that the Bill extends to Scotland, but I can see no explicit provision to that effect in the Bill. It would also be helpful if he could comment on the drafting of the Bill.
Extraordinary and abhorrent as the possibility may seem, it has been put to me and was mentioned by the noble Lord, Lord Alton, and my noble friend Lady Blatch, that it might be feasible to incubate a cloned human embryo in the body of an animal. Indeed, the 1990 Act appears to allow for the possibility of animal incubation. But if that is so, why does not the Bill echo that provision? And if the Bill before us is passed into law, what is to stop Professor Antinori, or anyone else, from using the freedom of this country's unregulated environment to conduct CNR experiments, deep freeze the results of such work and take those results abroad?
Given that the recent High Court judgment turned on the question of what was or was not an embryo for the purposes of the 1990 Act, I find it odd, to say the least, that the Bill contains no definition of the word "embryo". The same can be said of the word "fertilisation". No doubt the Minister will say that the purpose of the legislation is clear, but such semantic looseness has got the Government into their recent trouble. We do not want a repeat of that. Like the noble Lord, Lord Brennan, I see strong arguments for trying to close any such loopholes which we can now identify.
In the context of this Second Reading debate, we must return to the central point at issue. Is what the Bill sets out to do worthy of our support? I am in no doubt that it is. There are times when the official Opposition have a duty to take the Government to task for their perceived omissions, for their wrong assurances, for ignoring warnings and for not acting sooner. This is not one of those times. It is a time for Parliament to speak with one voice; to make a clear statement about our commonly held values; and to forestall a real and imminent threat. From these Benches, I am pleased to offer my support to the Government for the proposals now before us.
§ 5.56 p.m.
§ Lord Hunt of Kings Heath
My Lords, our debate has been of high quality and the contributions have ranged far and wide across the ethical and practical 54 dimension of cloning. I agree with the noble Earl, Lord Howe, that the debate reflected the seriousness of the matters before us today. Furthermore, I thought that the right reverend Prelate the Bishop of St Albans made some thoughtful comments about the dimensions in which we are discussing the matter.
As regards therapeutic cloning, I suspect that we are unlikely ever to come to unanimity of view. However, I agree with the noble Lord, Lord Alton, that dialogue is most important in those matters. As my noble friend Lady Lockwood said, what unites all noble Lords is an abhorrence of human reproductive cloning and a desire for us all to see effective regulation in place.
In referring to emergency legislation, the noble Earl, Lord Howe, said that it was never welcomed but he believed that it was justified in this case. His critique of the ethics of human reproductive cloning were both helpful and apposite.
The noble Baronesses, Lady Blatch and Lady Knight, criticised the process by which we have reached today's situation. I believe that since 1997 there has been a thorough debate of many of the issues. There was the original report from the House of Commons Select Committee on Science and Technology; the public consultation by the HFEA and the Human Genetics Advisory Commission, which led to their recommendations and report, Cloning Issues in Reproduction, Science and Medicine—
§ Baroness Knight of Collingtree
My Lords, I am grateful to the Minister for giving way. Will he concede that in these matters progress is being made quickly over a large area, so that a debate four or live years ago may not necessarily have been sufficient to deal with all the problems?
§ Lord Hunt of Kings Heath
My Lords, perhaps I may turn to that matter in a moment because I was describing two steps in an extensive process. Those reports were followed by a thorough examination of the matter by the Chief Medical Officer's expert group. That paved the way for the regulations which were put before the House at the beginning of the year. I believe that those debates—a seven-hour debate in your Lordships' House and a three-day debate in the House of Commons—allowed many views to be aired and allowed the subject to he thoroughly discussed.
The noble Baroness, Lady Blatch, was critical of the advice I gave to the House in January in relation to the 1990 Act and the comments I made as regards human cloning. I say to the noble Baroness that what I said then was based on legal advice given to the Government. I believe that it was appropriate to follow that advice.
The noble Baroness, Lady Knight, suggested that the Government had acted in haste in bringing emergency legislation before your Lordships' House this afternoon and that perhaps we should have been a little more relaxed about excitable Italians who make what may appear to be far-fetched claims. I tend to agree with the noble Baroness about the particular Italian to whom she refers, but ultimately I do not 55 believe that we can take that risk. The announcement yesterday in the United States surely reinforces the need to take action urgently.
My noble friend Lord Brennan gave five reasons for taking action. In particular I agree with his comments about the need to restore public confidence in science, the safety issues involved in human reproductive cloning and the ethics that follow from that. Perhaps on the same theme, the noble Baroness, Lady Walmsley, suggested that the Government could have awaited the report of the Select Committee of the House of Lords. I believe that in an ideal world it would have been better to await that report and, in the light of it, bring legislation before your Lordships' House, if that was required. But the Government had to make a judgment, and I believe that they were right to decide that because of the specific threat that this procedure might be carried out in this country, legislation should be brought forward urgently.
The noble Baroness, Lady Warnock, welcomed the proposal and said that it would reassure those who were concerned about human cloning. In particular, she dealt with the "slippery slope" argument which many noble Lords had raised in the debate on the regulations in January. The noble Baroness also made the very important point that if we dealt with the specific issue of human reproductive cloning, it would allow us time to concentrate on therapeutic cloning.
The right reverend Prelate the Bishop of Oxford informed the House that the Select Committee's report would be published very soon. As I said to the noble Lord, Lord Alton, it is the intention of the Government to listen very carefully to the recommendations of that report. If, as a result, it is apparent that further legislation in this area is needed, the Government will bring it before Parliament. But I accept that it is important to have sufficient time to consider carefully the results and recommendations of that report, and that is what we shall seek to do.
My noble friend Lord Winston referred to some of the practical problems of cell nuclear replacement; for example, the abnormalities of animals involved in the cloning process, the impairment of genetic imprinting and the fact that other genes are not expressed normally in those animals. Those were very telling remarks about some of the risks involved. That is another reason why we believe it right to bring legislation before your Lordships' House this afternoon. My noble friend referred to my remarks about the potential of therapeutic cloning. The noble Lord, Lord Rix, very much reinforced the point that I made. I accept that we must be cautious about the time when those benefits may emerge. I also accept the strictures of my noble friend that at this stage none of us can say for certain what will be the impact of this research. But my noble friend said that we should not ban the pursuit of knowledge and I believe that to be very important.
The noble Lord, Lord Alton, made a number of points. He would urge the House to prohibit human cloning of all kinds until the Select Committee reports and, if necessary, legislation is subsequently brought 56 before the House. I believe that there is a different order of consideration. Surely, the noble Lord, Lord Walton, and my noble friend Lord Turnberg put the point correctly: the difference is that this House and the other place have indicated time and again that they oppose human reproductive cloning, but last January this Chamber voted by a large majority to allow therapeutic cloning. I believe that that indicates that there is a different order of consideration. If, as a result of the legal process, such therapeutic cloning is unregulated, the Government will return to Parliament.
§ Baroness Blatch
My Lords, I am grateful to the Minister for giving way. Does the noble Lord concede that during that debate noble Lords were assured: first, that the parent legislation was the 1990 Act and, therefore, the measures were pre-authorised and all they were doing was passing secondary legislation; secondly, that the matter would be regulated as a result of that; and, thirdly, that the whole issue of regulation was all right and that cloning was, in fact, illegal? Does the Minister agree that the vote was taken in the context of all those assurances by the Government which have since been declared by the High Court not to be regular?
§ Lord Hunt of Kings Heath
My Lords, the Government wish and seek to have therapeutic cloning regulated. We are in the middle of a legal case and are appealing against the judgment of 15th November. If at the end of that legal process the Government lose their case and therapeutic cloning remains unregulated, we shall seek to bring before the House further legislation to ensure that it is regulated.
§ Baroness Blatch
My Lords, it will not be a question of bringing forward legislation to make sure that it is regulated. The matter must come before Parliament by way of primary legislation to be approved as a technique, after which it will be regulated.
§ Lord Hunt of Kings Heath
My Lords, I do not believe that anything I have said is in disagreement with the comments of the noble Baroness. It would require primary legislation and it would need to be regulated.
§ Lord Alton of Liverpool
My Lords, I am grateful to the Minister for giving way. For the understanding of people outside this House, will the Minister also confirm that as soon as the court case began in January the Human Fertilisation and Embryology Authority said that until the whole legal process was completed—it could go as far as your Lordships' House and the Law Lords and on to the European Court—no licences would be issued?
§ Lord Hunt of Kings Heath
My Lords, I make two comments in response. First, it is certainly my impression that the HFEA said that pending the court case no applications involving therapeutic cloning would be entertained. Secondly, as of 15th November 57 the HFEA lost competence in that regard. The noble Lord is absolutely right. That was why I said it was the intention of the Government that, at the end of the legal process, if therapeutic cloning was found to be unregulated, the Government would seek to bring legislation before your Lordships' House to put it right.
There was some debate about the use of terminology, in particular the word "embryo". I believe that in this respect the judgment of Mr Justice Crane is apposite:it is conceded, in my view correctly, that the organism produced by [cell nuclear replacement] is naturally described as an 'embryo', at least when the two-cell stage is reached. That is consistent with the expert evidence before the court".I interpret that to say that it is not in question that an organism created by cell nuclear replacement is an embryo. The question the judge decided was whether that embryo fell to be regulated by the 1990 Act and subsequently by the HFEA. He concluded that it did not fall to be regulated by the authority.
The noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Sharp, paid tribute to the work of the HFEA. I very much concur with their comments. The authority has earned an international reputation and we can he proud of the way in which, since 1990, it has ensured that a professional and well-regulated process has been put in place.
Perhaps I may turn to an issue which has been raised again; namely, whether embryonic stem cells ultimately will produce more effective results than adult stem cells. I have listened with great care to the comments that have been made by many noble Lords in the course of the debate. The evidence available so far from the greater body of science suggests that work should continue on both fronts. At this stage, we do not know the outcome of either area of research and thus we ought to ensure that the research covers them both. The chairman of the Royal Society, Professor Richard Gardner, recently stated that:Although recent developments in the study of adult stem cells are very exciting, the Royal Society does not believe that this area of research represents a scientific alternative to embryonic stem cell research. Both research areas need to be pursued because it is likely that each will yield distinctive therapeutic benefits. Indeed, research in one area may help work in the other. We cannot predict which area will yield the first or best therapies".A number of comments were made as regards the international and the European position. Although claims have been made that there is consistency here, the fact is that different countries have taken wholly different approaches to the matter. In the United States, President Bush has announced a limited relaxation on federal funding in respect of embryonic stem cell research using cell lines obtained before August 2001. It is true that a Bill to ban all cloning gained early support, but I understand that at the moment the legislation has been dropped from the timetable in the Senate in the light of events post 11th September. In some other countries, embryo research is subject to legislation, while in others no legislation has been put in place. That is the case in Belgium and the Netherlands, where nevertheless embryo research is carried out. With regard to European action, 58 following the establishment of the European Parliament's temporary committee on genetics, perhaps I may respond to comments made by the noble Baroness, Lady Knight, by saying that the European Commission has made it clear that the control of embryology is a matter for national law and national parliaments. However, on the question of human reproductive cloning, I can tell the House that the Government will support international efforts to establish a universal ban on such cloning.
§ Lord Alton of Liverpool
My Lords, can the Minister also confirm to noble Lords that, 10 days ago, the European Parliament passed by majority vote a resolution to prevent the provision of any funding for any scientist working in the Community who uses therapeutic as well as reproductive cloning techniques?
§ Lord Hunt of Kings Heath
My Lords, I am not aware of the exact terms of the relevant motion, but ultimately that vote would not affect this country's competence in the area. Furthermore, it would not affect the Government's ability to fund research efforts. The substantive point I seek to make is that, other than the hoped-for growing international consensus in relation to human reproductive cloning, major differences exist between countries as to how they approach these matters.
A number of comments have been made on the subject of implantation in animals. Fertilised embryos are fully governed by the 1990 Act which places an explicit ban on placing human embryos in any kind of animal. I understand that no suggestion has been put forward in any of the studies involving animals that it is intended to carry out reproductive cloning in such a way, or that it would work, if tried. But of course this is a matter to which the Government will return in the light both of the appeal and of the recommendations of the Select Committee.
The noble Lord, Lord Alton, asked about Recommendation 6 in the Donaldson report, which states that the mixing of human adult cells with the live eggs of any animal species should not be permitted. In their response to the Donaldson report, the Government agreed with that recommendation and stated that they would introduce legislation as soon as parliamentary time allowed. That remains the position in relation to the matter. In the mean time, we have called on those bodies funding the research to make it clear that they will not fund or support research involving the creation of such hybrids.
Questions were raised as regards the position of the women described in the Bill. The legislation makes it clear that the penalty applies to a person who places an embryo in a woman. That does not penalise the woman, although, as with other offences, the woman may be liable under the general rules of criminal law if she is an active or knowing participant.
§ Lord Alton of Liverpool
My Lords, I am grateful to the noble Lord for allowing me to intervene. Let us take the case of a woman who is desperate to have a child and so agrees to proceed with such all illicit 59 procedure. In those circumstances, surely if subsequently she were to reconsider her actions, it would quite wrong to criminalise her. According to the penalties set out in the Bill, such a woman could face up to 10 years in prison or a fine or both. Furthermore, she might be pushed into the hands of a backstreet abortionist because I presume that she would not wish to give reasons why she wished to seek a termination of the pregnancy.
§ Lord Hunt of Kings Heath
My Lords, it is difficult to respond to the "what if" scenario painted by the noble Lord. However, I should say that the construction of the Bill is similar to that of the Act. I understand that no prosecutions have taken place under that Act of any women who have been involved in activities listed as criminal under the Act. But clearly the circumstances under which the events took place would strongly influence any decision as regards prosecution.
The noble Lord, Lord Alton, also asked about human rights. A long line of authorities from Strasbourg to the European Court of Human Rights has never afforded a foetus legal rights in order to give it the same legal status as a child or adult. Consequently, Article 2 has not been held to apply, let alone to be breached, in the case of a foetus or embryo.
The noble Earl, Lord Howe, asked about the position in regard to Scotland, as did the noble Lord, Lord Alton. I can confirm that the Bill will extend to the whole of the United Kingdom. It is the convention that Westminster Bills extend to Scotland unless it is made explicit in a Bill that it does not do so. For some reason that escapes me, the converse is true for Northern Ireland.
§ Lord Alton of Liverpool
My Lords, I am grateful to the Minister for allowing me to intervene once more. The Bill specifies that the Director of Public Prosecutions will bring forward cases in England, Wales and Northern Ireland and will be responsible for determining whether a prosecution should be pursued. Can the Minister tell the House whether in Scotland the Lord Advocate would undertake those tasks? Who would bring forward such prosecutions? That information is not specified on the face of the Bill.
§ Lord Hunt of Kings Heath
My Lords, again, that is consistent with all legislation as well as being consistent with the 1990 Act. Prosecutions in Scotland would be brought forward in the normal manner for criminal cases.
Perhaps I may turn to a number of questions raised in regard to definitions. I should like to make a general point. Terms such as "fertilisation" and "embryo" are used extensively in legislation. The purpose of that is clear and I caution the House against trying to secure too tight a definition of the terminology. In this unfolding and fast developing field, the stronger the attempts to tighten the definitions, the easier it is to build future loopholes into the legislation. That should 60 explain the terminology that has been used and which we have tried to make as consistent as possible with the original 1990 Act.
The noble Baroness, Lady O'Neill, referred to the HFEA being able to regulate the use of eggs. My understanding is that the HFEA's power is limited and applies to the storage of eggs and their use to create embryos by fertilisation. My advice is that the 1990 Act does not govern the use of fresh eggs, which can be used to create a cloned embryo. So that means that the HFEA would not be able to prevent cloning by regulating the use of eggs in this way.
Turning to a central point of the arguments put before your Lordships' House today, this is not a comprehensive Bill; it makes no claim to be such. As the noble Baroness, Lady Sharp, said, it is a stop-gap Bill designed to deal with the most serious issue that arises from the judgment of 15th November. I believe that it is a proportionate response. I wish again to give an absolute assurance to your Lordships. A number of issues have been raised which, in the light of the current judgment, appear to be outwith regulation. We shall return to those matters at the end of the legal process and in the light of the House of Lords Select Committee report. If, ultimately, it appears necessary to bring further legislation before Parliament, we shall not hesitate to do so.
The Bill—urgent as it is—is a proportionate response to the issues we face following the judgment. I hope that your Lordships will support the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.