The Prime Minister’s decision to allow Labour MPs a free vote on three clauses of the Human Fertilisation and Embryology Bill has surprised many Westminster watchers.
The issues surrounding so-called ‘saviour siblings,’ human-animal embryos and the requirement for doctors to consider ‘the need for a father’ when deciding on whether to agree to carry out fertilisation or fertility treatments were all discussed at length in the Lords.
Those debates should give us a flavour of the debate in the Commons, which is not expected until after the local council elections in May.
Their Lordships spent hours discussing whether it is correct to remove the ‘need for a father’ and replace it with the need for ‘supportive parenting’ so as not to discriminate against same-sex couples.
During their debates in January there were strong objections from bishops and some Tory peers, but an amendment by Tory peer Baroness Deech seeking to retain the “need for a father” was defeated by 164 to 93.
Lord Darzi, the Under-Secretary of State for Health, addressed the concerns about the need for a father expressed by many peers.
“I hope that I may be able to address some of the concerns through further explanation of the Government’s thinking,” he said.
“Many of the concerns raised appear to be motivated not by any practical effect that the clause may have in relation to assisted reproduction but by a general concern for the perceived signal or message that may be derived from its removal. I understand that concern.
“Let me say at the outset that the proposal is not motivated by any attack on fathers or on the concept of fatherhood. Nor is it motivated by a simplistic desire for political correctness.
“The government recognise clearly the extremely important role that fathers can and do play in their children’s lives and the consequences that can follow where a relationship breaks down. Many measures taken by this government are aimed at strengthening the role of fathers and ensuring that they are aware of their responsibilities.”
The minister pointed out to peers that only slightly less than 1.5% of UK births “result from licensed assisted conception treatments. Hence, we are talking about a few hundred children.”
He said that at present there is no requirement in the law as it stands that there must be a father or any man involved in the upbringing of the child.
“There is no ban on single women or same-sex couples receiving assisted conception treatment,” he reminded the House.
Among the most trenchant voices opposed to equality in this regard was former Conservative Cabinet minister Norman Tebbit.
“A child’s life prospects are better if it grows up in a family, with a father and a mother, than if it lacks either of them. In general, these are indisputable facts,” he said.
“This Bill, as drafted, tends to marginalise fathers. That is true, but it is not the worst of it.
“This Bill concentrates so much on the alleged right of a mother to have a child that it forgets the right of a child to have a pair of parents-a mother and a father.
As for human rights law, do not children have human rights? Does not an unborn child have rights?
“Indeed, perhaps one could extend it to the concept that a child not yet conceived, has a right? I think it does. It has a human right to a father and a mother. We should ensure that we do all we can to see that that is carried through.”
Lord Alli, one of two openly gay peers, spoke in favour of lesbian and gay parents:
“The consideration of the potential need for a father should not outweigh the assessment of whether potentially a lesbian gay couple would make good parents or whether a single woman would make a good parent,” he said.
“No one is trying to substitute the biological father. The Bill is simply trying to allow same-sex couples and single women to have equal access to fertility clinics instead of taking alternative informal routes.
“It is with some regret that I read some of the claims made about the endurability of same-sex relationships and the suitability of lesbian and gay people as parents.
“This Bill will, for the first time, enable two women in a committed relationship to consider starting a family with, and this is the important point, the support of the fertility clinic.
“The Bill would allow the women to start their family with the support of the fertility clinic. The present requirement upon such clinics is to support the potential need for a father before granting the treatment.
“That can encourage some women to make informal arrangements outside the protection of formal healthcare and that should be avoided.
“This is a narrow and specific question, not a broader one of fatherhood. No one is trying to replace the father. It will not deter many of these women from having children. It will simply drive them away from the services they pay for and have a right to expect.”
Conservative elected hereditary peer Lord Elton said it was “extraordinary” to remove the need for a father.
“It seems to me grotesque and unpleasant,” he said.
“The sensibilities of those who may be bringing children up after they are born must come second to the interests of the child.”
Labour’s Lord McIntosh of Haringey, leading Humanist, interrupted Lord Elton to give an example of why is point was irrelevant.
“My sister is a lesbian, and she and her partner decided to have a child,” Lord McIntosh told peers.
“Her partner bore the child, with the active agreement of a man friend. My sister has no rights whatever over that child.
“She had no legal power to become the equivalent of a father. Fortunately, it has worked well, and the child has grown up happy and contented.
“The effect of the existing law is to take away the equivalent of a father, and the effect of this bill would be to give my sister rights that would be equivalent to those of a father.
“It works in the opposite direction from that which the noble Lord, Lord Elton, is describing.”
Lord Elton rejected the point.
“The bill is not perfect, and the noble Lord suggests that there is no way of introducing a right for a woman in this position or a relationship which cannot in my view properly cut out the parenthood of the male,” he said.
“I do not rule out the possibility of putting a locus for a second female with the child of a couple, I am undecided on that and it should be looked at, but to rule out the male responsibility seems to go in the face of nature, religion and good sensible politics on the part of a government who are trying to stop overfilling the jails of this country.”
Baroness Paisley of St George’s, wife of the retiring DUP leader and First Minister of Northern Ireland Ian Paisley, attacked the bill. “This proposal totally disregards the biblical law on mixing kinds or species as laid down in Holy Scripture, and would be an offence to the Creator Himself, who made man in His own image,” she said.
“These proposals would also unleash an untameable monster on an already morally diminished people, the end result of which is too fearsome to contemplate.”
Other peers were less apocalyptic in the assessment of the proposed legislation, but many speakers were drawn to the proposal to remove the need for a father for children conceived through IVF.
Bishop of Newcastle urged the government to consider the welfare of the baby.
“It seems extraordinary that at this time in our society’s life we state in the law that in the welfare and well-being of a child there is no need any more for a father.
“It is surely very odd that the law might provide a birth certificate showing two women as parents of the child. I well understand that comes from a desire not to discriminate, but to have two women, or, indeed for that matter, two men on a birth certificate as parents is a very odd way to put things.
“We have come to see that donor-conceived children should be able to discover the truth about their origins, and of course we all commend the bill’s desire to promote the truth.
“So why provide a birth certificate naming two persons of the same sex, when it is simply not true? If the well-being of the child is a key principle, and if truthfulness is a key principle, then above all we have to be honest.”
Another Tory elected hereditary peer, Lord Selsdon, said that gay and lesbian civil partners are a “small minority” compared to people who are married.
“Over the past 10 years, I have noticed that in the political world people are paying more and more attention to the views of minorities, because, I suggest, they think that the minority vote might count,” he told peers.
“That may not be true, but the wishes and feelings of the majority are often ignored, including the moral feelings. When we look at that, my suggestion is that we have a few technical problems.
“The average age at which a male civil partnership is entered into is 47 and the average age for female civil partnership is 44.
“Therefore, the people involved are above the age at which it is normal to be given IVF treatment on the NHS.
“An accumulation of evidence shows the importance of a father in bringing up children. I suggest that the father has four roles. The first is giving physical, financial and emotional support to the mother. The second is as a secondary, but still very important, attachment figure for the child, adding to its self-esteem and sense of security.
“The third is as a role model, showing a boy what it means to be a man, building his self-esteem, encouraging him to work at school and developing by example his social skills. The fourth is as a role model to both boys and girls, showing them how a man and a woman can live and work together in a loving relationship.
“It is possible, but not proven, that a second mother can perform the first two of the roles that were traditionally those of the father, but she certainly cannot substitute for the father as a male role model.
“When most boys reach the age of seven or eight, they instinctively start to ask themselves what it means to be a man. They seek out heroes to be their role models.
“If there is a father, the child will instinctively love and admire him and will turn to him. If there is not, however, he will look elsewhere.
“With so few male teachers in primary schools today, he may have little alternative but to find a role model in his computer game or, as he grows up, in a gang leader on the street.
“My main concern is not so much with that small minority of children who will grow up in a lesbian household and who will have two women to look after them, but with the fact that (removing the need for a father) and other parts of the bill will send a message to fathers that it does not matter if they abandon their child, and it will send a message to all prospective mothers that it does not matter whether their child has a dad.”
Labour’s Baroness Hollis of Heigham told the House that she holds “conservative views about the family,” but criticised the language used by some of her fellow peers in the debate.
“To suggest, as did the most reverend Primate the Archbishop of York, that we need to include such a phrase in the bill to placate Fathers 4 Justice is profoundly unwise,” she said.
“Should reference to the need for a father be on the face of this bill? Let me be clear. Do I think that the welfare of a child is usually best ensured within a loving, stable family of a mother and father? Yes, I do.
“Do I also think that a single parent or a gay or lesbian couple can be a loving, stable family, as my noble friend Lord McIntosh said? Yes, I do.
“Do I think that fathers should offer emotional and financial sustained support to their children? Yes, I do.
“Do I value their contribution, especially in providing a role model for sons, as the noble Lord, Lord Northbourne, eloquently described it?
“Yes, I do. Do I think that many children will want to know who their fathers are? Yes, I do.
“Do I therefore believe that the need for a father should be a consideration for the clinician and the phrase reinstated in this bill? No, I do not.”
Baroness Hollis went on to claim that the current requirement for a father is “meaningless, vacuous, empty rhetoric” as single women receive IVF treatment.
“We have been told this by the minister and by clinicians and the noble Baroness, Lady Warnock, has emphasised the point. It is not usually salient to the decision whether to offer IVF treatment.
“Instead the assessment is made on whether the woman is in sound physical and emotional health, or, in more conventional parlance, not “flaky”, and has family support.
“If we reinsert the phrase, we are doing so because it should be meaningful; otherwise there is no point, and why bother? It would mean that clinicians would and should question the whereabouts of the putative father. If there is no such person, what then?
“Will they still permit treatment, in which case the question was intrusive but irrelevant, or refuse it, which means discriminating against and denying single women and lesbian partners the right to IVF?
“Even if they are young and fertile enough and may have unassisted births and even though, after the most intense and rigorous scrutiny, they may have adopted a child, they may not receive IVF.
“Fathers do belong in children’s lives. I firmly believe that. It is just the phrase that does not belong in the bill”
Baroness O’Neill of Bengarve, a crossbench peer and former professor of philosophy, agreed that the need for a father is an ambiguous and impractical phrase.
“Being a father is a deeply understood notion in our and every culture,” she said.
“Fatherhood is not something that is up for legislative redefinition. We would do much better to put the emphasis on the notion of the agreed parent and the second agreed parent and, if I had my way, even the third agreed parent.
“We need not challenge in a way that many of our fellow citizens find offensive the importance of fathers in fixing with legal certainty the parental rights of those who actually bring children up.”
Baroness Barker, a Liberal Democrat, said that her party believed this issue should be given a free vote, “in recognition of conflicting and very deeply-held religious and moral views.”
“It is also our party’s policy that individual women and lesbian and gay couples should not face discrimination when they seek fertility treatment,” she told peers.
“I say to those noble Lords who have said throughout the debate that they do not wish to be discriminatory in any way, that some of the statements that have been made about fatherhood and parenthood can only be that.
“When heterosexual people agonise long and hard and decide that adoption is not the right course for them or for the children, we support them through the physical and emotional trauma of fertility treatment and we rejoice with them when it is successful.
“But when single or gay people make that same difficult considered decision, we are suddenly surrounded by phrases like “children are accessories” and “nobody has the right to a child.”
“Of course nobody has the right to a child, but nothing in the bill suggests that they do.
“All that is suggested is that people are given the same consideration as potential parents.
“I suggest that in seeking to make the changes that noble Lords have indicated, we risk eliminating those single women and gay people who have taken a responsible attitude towards parenthood, who are willing to subject themselves to the intrusive questioning that is quite rightly conducted when people present themselves for this sort of treatment and who are the responsible parents we should be encouraging.”
Perhaps the most impressive speech was from Lib Dem peer Lord Carlile. He spoke about his daughter, who is in a civil partnership and has two children.
“The daughter in question, my middle daughter, is a solicitor, and her partner is an accountant. They are – if they will forgive me – as square as a box,” he explained to his fellow peers.
“They live in a provincial town in England, in a splendid semi-detached house with double-glazed new windows and a Vauxhall Zafira sitting in the drive.
“Their child, my grandson, is the picture of health and his parents are morally exemplary. They happen to be married to each other through a civil partnership and they are both female.
“I hear the noble Lord, Lord Tebbit, unhelpfully muttering from a sedentary position. I do not expect to persuade him, and I am sure that he will do me the politeness of giving me a quiet and fair hearing.
“My daughter and her partner became parents by going to a well run, highly respected fertility clinic. Their second child will be a full sibling of their first child, my existing grandson by that marriage.
“The child is clever and articulate; I suspect that he may be the brightest of my grandchildren, but do not tell the others. My daughter and her civil partner have many friends who have been through the same process, and I have met several of them.
“They are typical of such couples: respectable, decent, honest and rather squarer than the prejudices held by many about such couples.
“They abhor the idea of people going on the black market to dishonest fertilisers-sperm donors-who already exist in this country. I know from pretty reliable anecdote that there are people in London who are prepared to be sperm donors informally, in their bathroom or kitchen, in the most disgusting way.
“They are unregulated, the health risks are enormous, and they can be accessed via the internet. If same-sex couples like my daughter and daughter-in-law are driven on to the black market for sperm donors, we will have a health disaster on our hands.
“But they may well feel driven to do that if the law is drawn in the way suggested in the debate.
“I urge your Lordships to hold back from imposing what are really old prejudices, however conscientiously felt, on the modern world of civil partnerships.
“To those of us who have walked in and out of prisons, in and out of courtrooms whether as advocates or judges, who have been Members of the other place and have had large numbers of people coming to see us week after week privately about their personal problems, I say this: in the real world, what is offered by conscientious same-sex couples probably exceeds in quality the majority of what is offered even by heterosexual couples.
“There is no reason to discriminate against them. So I invite noble Lords to remember that we are in 2008. We need to recognise the reality of our modern age.”
While Gordon Brown has allowed a free vote on three clauses of the Human Fertilisation and Embryology Bill, including the removal of the need for a father provision, all Labour MPs will be expected to vote for the whole bill to ensure it becomes law.