Three-part article in Justice of the Peace

Introductory note by Francis Bennion The following three-part article relates to the Human Fertilisation and Embryology Bill 2008. This was later enacted as the Human Fertilisation and Embryology Act 2008. References to clause 14(2)(b) of the Bill now relate to section 14(2)(b) of the Act, while references to clause 23 relate to section 23 of the Act.

‘Ditching Daddy, or Tesco Ergo Sum

Part 1 A Question of Ambiguity’

Francis Bennion*

172 JPN (5-12 Jan 2008) 7

Doc. No. 2008.001

Page 7

Introductory

Does a child need a father? Silly question really. With all the wonders of IVF science, what is delicately referred to as “male material” is still needed for bringing a human creature into life. Still, the question is a real one so far as the law is concerned – as the debates on a current House of Lords Bill show.

The essence of law is coercion; and the hallmark of fair democratic law is that by it minorities are not coerced improperly. Law exceeds its proper function when it coerces minorities in order to effect social engineering. Social change should be left to the natural development of human societies, and is not the province of government.

These reflections (which would not be found acceptable by the present Government) are prompted by the way current legislation at Westminster treats families, and in particular fathers. It is exemplified by the Human Fertilisation and Embryology Bill [HL], which was given an unopposed second reading on November 21 followed by a committee stage in December. The concluding stages in the Lords are expected on January 15, after which the Bill will proceed to the Commons.

The Bill (which I will call the IVF Bill) proposes to amend the Human Fertilisation and Embryology Act 1990 in various ways. In this three-part series I shall concentrate on one aspect only, the need for a father. Parliament confirmed this need in the 1990 Act. Now the Government is asking it to have second thoughts.

The present law

Currently, section 13(5) of the 1990 Act requires that a woman shall not be provided with IVF treatment unless account has been taken of the welfare of any child who may be born as a result of the treatment including the need of that child for a father. The IVF Bill proposes to remove the italicised words, giving no reason on its face why it is doing so.

Clause 14(2)(b) of the Bill would remove the reference to a child’s need for a father from the licence condition to be imposed under section 13(5) of the 1990 Act. Section 13(5) will continue to require licence holders to consider the welfare of a child who may be born as a result of treatment (and any other child who might be affected).

Clause 23 of the IVF Bill makes a similar amendment to section 25(2) of the 1990 Act, which requires the Human Fertilisation and Embryology Authority (HFEA) to provide guidance on the carrying out of the duty to take account of the child’s welfare.

The above description is drawn from the official explanatory notes to the Bill, which again give no clue to the reason for removing the reference to the need for a father. In the period since 1990 has this important need mysteriously melted away? How could such a strange thing happen?

We cannot tell. The explanatory notes are silent on all that. Moving the second reading of the Bill, the Government spokesman Lord Darzi of Denham, a clinical scientist, was also silent on the point at that stage – though he was forced into the open later.

Since the matter is important, I will give in the course of these articles the views of all the seventeen peers and peeresses who discussed the father point in the second reading debate. For the moment however I will concentrate on a powerful voice from the dark continent.

Enter the Archbishop

In the second reading debate on the IVF Bill Dr John Sentamu, the Archbishop of York, gave a lengthy address on the fathers point. In the course of this he told us where the Government got the idea from. He said the severance of law from morality and religion has gone too far. Religion, morality and law were once intermingled, which helped to shape both the common law and the statutes of this land, and greatly influenced the way in which judges interpreted them. However, he said, the law is now regarded purely as an instrument for regulating our personal affairs and as being completely severed from morality and religion.

There is all the difference in the world, said the Archbishop, between children who find themselves in a single-parent family through bereavement or breakdown of parental relationship, and those who find themselves in that situation by design. “That is precisely what the Government propose in the Bill: the removal, by design, of the father of the child.” (Here he was referring to provisions in the IVF Bill whereby two women can be registered as the sole parents of a child, with the true father being consigned to oblivion.)

We know already, added the Archbishop, that there are men who have been moved by legal circumstances to form Fathers 4 Justice. When one overlooks the movement’s pranks and purported attempts to kidnap Leo Blair, one discovers that its founder was forced into campaigning because he was denied access overnight to a child whom he dearly loved and whom he believed loved and needed him. It took a long time for access to be restored. We now have a Bill whereby the Government are set to remove, as

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a statement of public policy, the requirement for the need of a father. How much stronger then might the campaign of Fathers 4 Justice become?

Dr Sentamu found confusion in the mind of the Government over the importance of fathers.

“ First, in 2004, they made regulations to encourage parental responsibility and visibility by removing donor anonymity and allowing donor-conceived children to access the identity of donors involved in their conception. Secondly, they have rightly emphasised in their policies the need for male role models for social cohesion, to reduce underachievement, and to avoid increasing violent crime and gang culture.”

The Government, said Dr Sentamu, posit their argument on the view of the Science and Technology Committee, expressed in its 2005 report, that expressing the need for a father is “unjustifiably offensive”. To whom, asked the Archbishop, is it unjustifiably offensive? Is it unjustifiably offensive to the child who will be dependent upon the love and care of the father? Are the Government really saying that they are basing their response on whether the need for a father gives offence?

It seems from the White Paper preceding the Bill, said the Archbishop, that the rationale for removing the need of a child for a father is so as to appear not to discriminate against same-sex couples or single mothers who want to have a child through IVF. This is based not on the welfare of the child but on the desire of those who feel that they should have a child as of right, without the need of a father. The Government are bowing to the argument that, if single people and gay and lesbian couples can legally adopt, the same permission must therefore be given if they wish to commission a child using IVF.

“That is a non-sequitur, because the situations are markedly different; in adoption, the hospitality of a home is being offered to already existing children who have had the misfortune, through circumstances or necessity, to lose or be removed from the constant love of their own parents . . . The child’s right not to be deliberately deprived of a father is greater than any right to commission a child by IVF.”

Dr Sentamu argued that there is an unhealthy theme of rampant indifference at the heart of the IVF Bill, rooted in a consumerist mentality in which the science that allows something to happen is transformed into the right to have it.

“ The cogito ergo sum of Descartes—‘I think therefore I am’—becomes the consumerist mantra, ‘I shop therefore I am’ or Tesco ergo sum.”

The Archbishop ended by saying that there is an individualism that posits the right of a wannabe parent over the welfare of a child, and that this virus of individualistic consumerism which informs a rights-based mentality is alien to those who come from another place—Africa—where they say, “I am because we are: I belong therefore I am”.

Ambiguity of Proposed Amendments

Here I am going to break off and get technical. As I have said, the IVF Bill proposes to remove from section 13(5) of the 1990 Act the words including the need of that child for a father, and also to make a corresponding amendment in section 25(2). In each case the words are contained in a parenthesis, the whole of which would be repealed. As it stands now section 13(5) reads:

A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.

Section 25(2) has similar wording. In both cases the IVF Bill would repeal the parenthesis without specifying the effect this is intended to have. I will discuss the matter in relation to section 13(5) only, since the same arguments apply also to section 25(2).

A parenthesis, defined by the OED as an explanatory or qualifying word, clause or sentence, is not a proposition in itself, but explains or qualifies the proposition to which it relates. When it is contained in an Act of Parliament and deleted by a later Act of Parliament there is need for the later Act to indicate why it is being deleted and with what intention - otherwise its legal effect will be uncertain. The IVF Bill fails to do that, and in my view needs to be amended.

There are at least four different possible legal meanings. If the provision is read without regard to its legislative history, that is without paying attention to its original wording and the effect of the Bill, one would naturally think (what I will call meaning 1) that the general reference to “welfare” included due consideration of the position with regard to a father, though without special emphasis. Taking it into account (or not) would be a question of discretion, to be exercised in accordance with the reasonable opinion of those taking the decision whether or not to administer IVF treatment in the instant case.

If the provision is read with due regard to its legislative history, the reader would be faced with this question. Was meaning 1 really what Parliament intended when it repealed the parenthesis? Perhaps Parliament meant (meaning 2) that the need for a father was so obvious that there was after all no need to single it out for special mention and that it was undesirable to stress this one aspect by doing so.

Or perhaps it meant (meaning 3) that Parliament wished to signal that it so dislikes the need for a father being taken into account that it intended, from the commencement of the Bill, that that need should be altogether disregarded.

The final possibility is that Parliament considered the parenthesis to be no longer appropriate because either there is an actual father or, with a lone woman being treated as the sole parent, or two women together being treated as sole parents, the question of a father simply does not arise. Here (meaning 4) its repeal would be regarded as simply a piece of statute law revision.

The following table sets out the four possible meanings.

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Which of these four meanings would Parliament be taken to have intended if the Bill remains as it is? The rules of statutory interpretation should come to our rescue here. I would say as a brief summary that when the literal rule of interpretation held sway it would have been plausible to favour meaning 1. Now we have purposive construction and the informed interpretation rule. These point to meaning 3 or meaning 4, which have broadly the same effect. This leaves meaning 2 unsupported.

Under the rule in Pepper v Hart1 statements made in debate by the sponsor of a Bill may be admissible in aid of interpretation, so long as they are “clear”. On this Bill the Government spokesman in the House of Lords was Lord Darzi of Denham. He spoke about these amendments in his reply to the second reading debate.2 He also spoke about them at the Committee stage.3 Some of Lord Darzi’s comments favour meaning 1, while others favour meaning 3. So Pepper v Hart does not apply because there is not a “clear” statement of the Government’s intended legal meaning. Appropriate amendments are therefore needed to the Bill.

It may be difficult to frame these needed amendments. The uncomfortable truth is that, while Parliament has been on record for nearly twenty years as saying that a child has need of a father, if it passes this Bill it will be providing, on grounds apparently considered sufficient, for the bringing into existence, by artificial means officially sanctioned, of children in relation to whom that need cannot be satisfied.

Speaking as an experienced legislative draftsman, I do not see how this contradiction is to be adequately dealt with (it can scarcely be resolved) except by adopting and clearly expressing meaning 3. It seems that a need the law has recognised is to be deliberately disregarded. If that is the legislative intention it should surely be clearly expressed.

If the Government find such honesty uncomfortable I have another suggestion, which is simplicity itself. Instead of being deleted as the Government plan, the section 13(5) parenthesis would be reworded. The simplest amendment would be merely to add the words “where applicable”, so that section 13(5) would read:

A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including, where applicable, the need of that child for a father), and of any other child who may be affected by the birth.

This would take care of the case of the two women sole parents (particularly when they are registered as such). It would also deal with the lone mother where there is no suitable father figure available because then the need would not be “applicable”. There would of course be a similar amendment to section 25(2).4

I would respectfully add a final word. The House of Lords is supposed to be a revising chamber. This applies both to the policy of measures laid before it and also their technical state. The peers and peeresses considering the Bill on second reading and in committee included several lawyers of high standing, yet none of them mentioned the defects exposed in the present note. It is surely desirable that in its examination of Government Bills the House of Lords should pay due regard to the technical rules, principles, presumptions and canons which govern the legal effect of the legislation it passes.

Conclusion

As I have said, the final stages of the IVF Bill in the Lords are expected to take place on January 15, after which the Bill will proceed to the Commons. In part 2 of this article, due to appear next week, I will as promised above give extracts from speeches on the need for a father delivered in the Lords on second reading. In the final part to be published on January 19 I hope to explain how the fathers point has been finally dealt with by the Lords before sending the Bill to the Commons.

. . . . . . . . . Part 2 >>>>>>

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*Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.

1 1993 AC 593.

2 Lords Hansard, 21 November 2007, cols 868-869.

3 Lords Hansard, 10 December 2007, cols 50-53.

4 A fuller version of my argument on ambiguity is contained in a note which has been circulated to certain peers and peeresses. It can be accessed at www.francisbennion.com/2007/027.htm