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
Part 1 A Question of Ambiguity’
172 JPN (5-12 Jan 2008) 7
||Doc. No. 2008.001
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).
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.
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.
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
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.)
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
a statement of public policy, the requirement for
the need of a father. How much stronger then might the campaign of Fathers 4 Justice
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
“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.”
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
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
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
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
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.
||The general reference to “welfare” in section 13(5) as
amended includes due consideration of the position with regard to a father, but without
||Section 13(5) as amended is to be construed in the same way as its unamended version.
||The question of the need for a father should not be considered.
||The question of the need for a father does not arise.
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
Hart 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. He
also spoke about them at the Committee stage. 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.
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).
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.
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
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
the Lords before sending the Bill to the Commons.
. . . . . . . . . Part 2 >>>>>>
*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