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Lord Turnberg: My Lords, like many other noble Lords, I too am strongly in favour of the regulations that give children the right of access to non-identifying information about their biological parents. Even more than that, I believe that it is essential that they can do that for a whole range of reasons set out in the explanatory memorandum and in the regulations. I support the question of the noble Earl, Lord Howe, about why children must wait until the age of 18 before they are allowed access to such information.
I would have thought it not unreasonable for them to have this sort of information much earlier. I also very much agree with the noble Baroness, Lady Warnock, about the need for children born in this way to have the information that they were indeed conceived in this way.
As regards paragraph 3 of the regulations, I am sorry to have to say that, despite the eloquence and persuasiveness of my noble friend Lady Andrews, I am much less persuaded of the validity of a right to identify a biological parent, where that parent no longer wishes to be identified 18 years downstream. There is a balance to be struck here between one individual's right to know and another's right to anonymity: it is not all one way. In other medical matters, we betray confidences and get round anonymity with great difficulty. We put up all sorts of barriers to prevent medical information, and information about oneself, getting out into another domain.
Let me give a couple of examples. Imagine the case of a young man, often a medical student—and here I rush to the defence of medical students—who, perhaps because he has seen the distress of infertile couples, decides to become a sperm donor. Perhaps, under the new regulations, he agrees now to give up his anonymity to any offspring of the donation. Then 18 years later when he is likely to be married, with a couple of children conceived with his wife, he is faced
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with a biological child—or perhaps five, or 10—who he probably did not know existed. Having agreed originally, he may now feel quite differently about a new-found child, as indeed may his wife, and his children born to her. Some embarrassment, certainly, but much more importantly, a considerable stress may be put on the marriage. We know that nowadays 50 per cent of marriages are shaky anyway.
Then there is the sense of responsibility suddenly acquired. Currently no legal responsibility is envisaged, but who knows what may follow in 18 years' time? In any case, a feeling of some responsibility cannot be denied and financial responsibility may follow, all of which will add to the stress on his own family.
My noble friend Lord Winston, who unfortunately cannot be here today, has given me an example of the woman who donates her eggs to another infertile woman. Often the donor women are going through an IVF programme and the spare eggs are given altruistically to others. But many such women fail themselves to conceive with IVF and they then face the unhappy prospect of meeting a child 18 years later who is genetically half theirs but who they had never known existed. Again, that is a further stress on a childless couple who are likely already to feel deprived. Of course it is possible that some may be pleased with the news, but I fear that more will be most distressed.
It was said that potential donors will be counselled before being asked to agree to being identified 18 years later and then again later, but I believe that the young men will either run a mile or go ahead and live to regret it. Who of us, when we were undergraduates, could have predicted how we would feel in 18 years' time? It therefore seems likely that we will see a fall in the number of sperm donors in the immediate aftermath of the regulations.
Although the experience of Sweden and elsewhere suggests that the numbers bounce back, I suspect that those who come forward will be older and more mature. We would then be losing out on the healthier—I fear that it is the healthier—sperm which comes from younger men than middle-aged men. And all because it is said that children born after donation feel dispossessed. My noble friend Lord Winston tells me that the evidence from his clinics shows that those who feel this way are likely to be in a small minority. Yet the potential damage this change in the law may inflict on others has barely been examined.
Clearly, today is not the day to try to remove these regulations, but I believe that we need much more evidence and more research into the full impact on all participants, not just the children and the parents rearing the child. I hope that I can persuade the Government, at the very least, to support more research into the impact on donors and their families of the loss of anonymity and to reconsider this whole issue in the light of that research when the 1990 Human Fertilisation and Embryology Act is revisited, as I hope it will be.
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Lord Patel: My Lords, I did not intend to speak, but hearing lots of my colleagues speak this evening has provoked me to do so. First, let me say that I support the Government on this Motion. I am also persuaded that the rights of children are paramount over the rights of infertile couples, or any other couple.
Bringing the law into line with that on adopted children is also correct, as my noble friend Lady Warnock said. I agree with all that the noble Lord, Lord Clement-Jones, said except that this is an ethical issue. To me this is beyond an ethical issue, it is a rights issue. It is about the right of children to know their biological identity.
I accept the arguments put forward very powerfully by the noble Lord, Lord Turnberg, about identifiable information being available. I have heard the arguments both from the British Fertility Society and my own college about how this change may create a problem, particularly with the falling numbers of sperm donors. The arguments and the examples produced by the noble Lord highlight that. I support the idea that more research should be carried out and that we should address the results of that research when we debate the matter further in due course.
However, today, all the briefs I have received from fostering, adoption and other agencies, the HFEA, the British Fertility Society and the college do not persuade me that this order should not be supported; and I support it.
Lord Mackay of Clashfern: My Lords, this is a particularly significant debate for me because I, along with my noble friend Lady Hooper, had the responsibility of presenting the Bill which became the 1990 Act to this House following the report of the noble Baroness, Lady Warnock, and her committee.
I recall that this particular matter—the identification of the donor—required a good deal of thought at the time. My recollection is that the main reason for adopting the stance taken in the Bill on this point was the belief that unless anonymity was afforded to the donors, the likelihood was that the system would never get off the ground.
It is now 14 years since that happened, but I think that there must still be a question about exactly what effect the change will have on the willingness of donors to come forward, particularly, as the noble Lord, Lord Turnberg, said, donors in the age bracket when their donations are likely to be the most valuable.
It is a difficult question. I entirely accept, and have always accepted, the importance and the paramountcy of the interests of the children. But unless a donor comes forward in a particular case, no child will emerge in that instance. So, in a sense, this is anterior to the question of the entitlement of the child because if there are no donors, no children will arise. That was the issue. At the moment I must say that I find it a little difficult to know the exact basis on which the Government are optimistic that this change will not seriously damage the programme in this respect.
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The very fact they seem to be proposing a fairly extensive advertising programme suggests at least a fear that that this may have a contrary effect. The other point I think is worth mentioning—I think the noble Lord, Lord Turnberg, also referred to this—is the question of ultimate responsibility. In her very clear introduction of these regulations, the noble Baroness mentioned the fact that any legal liability is excluded, but of course such legal liability is excluded only by the terms of the Act. This regulation shows that the terms of the Act are not by any means like the laws of the Medes and Persians. Therefore, some degree of liability should arise.
I am entirely in favour of non-identifiable information being allowed and I agree with those who asked why wait until 18. It may well be very important in connection with some illness in the child much earlier than that. We have seen a good deal of development in relation to the genetics of illness, and the precise situation in that respect might be extremely important. I am not sufficiently technically aware of the situation to know to what extent non-identifiable information can produce sufficient detail to enable a clinician to deal with this particular matter, but in so far as it is necessary for a clinician to be able to deal with the health of the child, I would hope that the necessary information would be available.
At present, I think that the general view of those who have spoken is that these regulations will not be opposed, but I think it is right to express some concern about their impact. The fact that such a distinguished practitioner in the area as the noble Lord, Lord Winston, has concerns about the issue certainly makes me—as by no means a practitioner—rather concerned.
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