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“No Father Required”? The Welfare Assessment in the Human Fertilisation and Embryology Act 2008

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Abstract

Of all the changes to the Human Fertilisation and Embryology Act 1990 that were introduced in 2008 by legislation of the same name, foremost to excite media attention and popular controversy was the amendment of the so-called welfare clause. This clause forms part of the licensing conditions which must be met by any clinic before offering those treatment services covered by the legislation. The 2008 Act deleted the statutory requirement that clinicians consider the need for a father of any potential child before offering a woman treatment, substituting for it a requirement that clinicians must henceforth consider the child’s need for “supportive parenting”. In this paper, we first briefly recall the history of the introduction of s 13(5) in the 1990 Act, before going on to track discussion of its amendment through the lengthy reform process that preceded the introduction of the 2008 Act. We then discuss the meaning of the phrase “supportive parenting” with reference to guidance regarding its interpretation offered by the Human Fertilisation and Embryology Authority. While the changes to s 13(5) have been represented as suggesting a major change in the law, we suggest that the reworded section does not represent a significant break from the previous law as it had been interpreted in practice. This raises the question of why it was that an amendment that is likely to make very little difference to clinical practice tended to excite such attention (and with such polarising force). To this end, we locate debates regarding s 13(5) within a broader context of popular anxieties regarding the use of reproductive technologies and, specifically, what they mean for the position of men within the family.

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Notes

  1. The phrase ‘No Father Required’ is taken from the title of an article in the Daily Mail, see Wilson (2005).

  2. Interviewees were: key officials at the Department of Health (Edward Webb, Deputy Director for Human Tissue Transplantation, Embryology and Consent; Gwen Skinner, the policy manager responsible for the development of the legal parenthood provisions in the 2008 Act; and Katy Berry, who was responsible for the implementation of the 2008 Act); the Deputy Chair of the Human Fertilisation and Embryology Authority (Emily Jackson); the academic advisors to the two Parliamentary committees involved in the reform process (Derek Morgan, Advisor to the House of Commons Science and Technology Committee and Sheila McLean, Advisor to the House of Commons Science and Technology Committee and the Joint Committee); the Chair of the Joint Committee (Phil Willis MP) and a further member of the Joint Committee (Baroness Deech, who was previously the Chair of the Human Fertilisation and Embryology Authority). We are grateful to our interviewees for their time and to the Socio-Legal Studies Association for providing the resources to conduct these interviews.

  3. Ss 3, 4. Plans to disband the HFEA and redistribute its functions to other bodies have recently been announced (Raper 2010), however, it will be some time before such plans might have any possibility of being realised given the need for primary legislation to put them into effect (Harris 2010).

  4. Introduced by Lady Saltoun of Abernethy, HL Debs Vol 515, Col 787 (6 Feb 1990). See Lee and Morgan (2001, pp. 159–167) for a detailed consideration of the parliamentary debates regarding s 13(5) and its application in practice.

  5. E.g. “To allow and encourage by state provision—it is at the taxpayers’ expense ultimately—begetting of children into what are designed to be one-parent families does not make sense as regards serious sociological responsibility” per Lord Lauderdale, HL Debs Vol 516, Col 1103 (6 March 1990). See further Sheldon (2005) for reference to examples of numerous other similar statements.

  6. E.g. “Children learn primarily from example, by copying what they see. It is by example that a boy learns how to be a responsible husband and father and how to treat his own children in turn. It is by example that a girl learns how to be a wife, from seeing how her mother cares for her father. The father is enormously important, if only as a role model” per Lady Saltoun of Abernethy, HL Debs Vol 515, Col 788 (6 February 1990).

  7. See e.g. Lord Ashbourne, HL Debs, Vol 515, Col 767 (6 February 1990), David Wilshire, HC Debs Vol 174, Cols 1024–1025 (20 June 1990).

  8. As Douglas (1993, p. 53) notes, the proposers of amendments to the legislation in the House of Lords were overwhelmingly concerned with preventing women with dubious sexual attitudes from having children, yet seemingly indifferent to others who might be deemed unsuitable as parents (e.g. violent spouses, drug users and disabled people, noting that in practice it can be hard for paraplegic men to persuade clinics to treat their wives).

  9. HC Debs Vol 174, Col 1023 (20 June 1990). Following an affair with publisher Kimberly Quinn, Blunkett became involved in a well publicised struggle in which he sought to establish his paternity of her two young children, with a view to assuming an active role in their lives; see Hinsliff (2005).

  10. This fits with the tentative guidance given by the Warnock Report (1984). See further Sheldon (2005) for a detailed rebuttal of the possible argument that the importance accorded to marriage was not seen as important per se, but merely reflected parliamentarians’ hope that this would ensure financial provision and a second carer who could bring specifically male attributes to bear.

  11. All editions of the Code of Practice are available on the HFEA website: www.hfea.gov.uk. Clinics were also advised that they must make “a fair and unprejudiced assessment of [the] situation and needs” of people seeking treatment, taking account of their commitment to bringing up a child, their ages and medical histories, the needs of prospective children and their ability to meet those needs, the risk of harm to the child and the effect of a new baby on existing children of the family (para 3.13).

  12. Note also two prominent legal cases, one brought before 1990 by a woman who had been refused treatment on the grounds of moral unsuitability (a history of prostitution) and a second after 1990, concerning refusal on the basis of age; both saw the claimants fail: R v Ethical Advisory Committee of St. Mary's Hospital ex p Harriott [1988] 1 FLR 512; R v Sheffield Health Authority, ex p Seale (1994) 25 BMLR 1.

  13. Adoption and Children Act 2002. Note also the recognition of same sex relationships in the Civil Partnership Act 2004.

  14. In two recent cases, the NHS reversed its decision to refuse treatment to two lesbian couples in the face of a legal challenge. While these decisions regarded the refusal of funding, clearly the couples concerned could not have won if they were seen to be arguing for funding for treatment which was unlawful. See further Robertson (2009) and Templeton (2009). While the imminent introduction of the 2008 Act was clearly a factor in the outcome of these cases, also significant was the impact of the Human Rights Act 1998 and the Equality Act 2006 on the legality of a refusal to treat on the grounds of sexual orientation. This is not to deny, however, the fact that s 13(5) was perceived as operating a real bar by at least some people: see again Jones (2007) and Harding (2010).

  15. See Tedd Webb, Joint Committee (2007, Vol I, para 243) commenting that the fact that s 13(5) “does not actually seem to achieve anything” was the Department of Health’s starting point for its proposed reform.

  16. The Government’s concern to emphasise patient safety as the basis for reform can also be seen, for example, in: Lord Darzi, HL Debs Vol 696, Col 869 (21 November 2007); Dawn Primarolo, HC Debs, Vol 475, Col 1159–1160 (12 May 2008). A number of other Parliamentarians also drew attention to the possible risks of unregulated sperm donation, to include health risks and questions over whether or not children would then be able to identify their genetic father: see Lord Carlile of Berriew, HL Debs, Vol 698, Col 65–66 (21 January 2008); Baroness Howarth of Breckland, HL Debs, Vol 698, Col 69–70 (21 January 2008); Lord Ali, HL Debs, Vol 698, Col 78 (21 January 2008); and Baroness Barker, HL Debs, Vol 698, Col 82–83 (21 January 2008)). This reasoning mirrors that of the Warnock Report (1984). Despite not necessitating the creation of in vitro embryos, Margaret Brazier has convincingly argued that donor insemination was included in the 1990 Act due to the Warnock Committee’s recognition that unregulated practices could endanger patients (1999, p. 172).

  17. Human Tissues and Embryos (Draft) Bill 2007, s 21(2)(b). Following the dropping of provisions foreseeing the merging of the HFEA and Human Tissue Authority, the title of the Bill was changed to the Human Fertilisation and Embryology Bill.

  18. Our interview with Phil Willis, MP confirmed that this wording was a compromise between those who wanted to retain the 1990 Act wording of the welfare provisions and those who thought it was in need of reform (Phil Willis, MP, interviewed on 19 March 2009).

  19. Phil Willis, MP, ibid.

  20. Ruth Deech, interviewed by Julie McCandless on 22 February 2009.

  21. For the text of the Bill, amendments tabled and links to all parliamentary debates, see: http://services.parliament.uk/bills/2007-08/humanfertilisationandembryology.html.

  22. Totalling up the series of brief mentions relating to the ‘status provisions’, which set out the determination of legal parenthood for those children conceived as a result of treatment services regulated by the Act, gives a total of around one hour of Parliamentary debate. In contrast, the welfare clause generated over eight hours of debate. This total would most likely have been greater had the time allocated to discussing the welfare clause in the House of Commons at Committee stage not been restricted to a three hour session.

  23. See particularly Iain Duncan Smith, HC Debs, Vol 476, Col 166–170 (20 May 2008).

  24. The extent of this conflation resulted in the following plea from Baroness Findlay of Llandaff: “I would also caution your Lordships that it is not honest to transpose the research from broken families and the outcomes for their children on to the outcomes for children who are conceived through an infertility clinic after incredibly careful consideration by people who are desperate to give the very best upbringing possible to those children. … That is completely different from unplanned pregnancies and broken relationships” (HL Debs, Vol 698, Col 84, 21 January 2008). A number of MPs also pointed to the significance of the different context: see for example, Dr Evan Harris, HC Debs, Vol 476, Col 168 (20 May 2008) and Dari Taylor, HC Debs, Vol 476, Col 194 (20 May 2008).

  25. Lord Elton, HL Debs, Vol 696, Col 843 (21 November 2007).

  26. Iris Robinson, HC Debs, Vol 475, Col 1125 (12 May 2008).

  27. Iain Duncan Smith, HC Debs, Vol 476, Col 167 (20 May 2008).

  28. Gary Streeter, HC Debs, Vol 476, Col 227 (3 June 2008).

  29. Geraldine Smith, HC Debs, Vol 475, Col 1097 (12 May 2008).

  30. Sir Patrick Cormack, HC Debs, Vol 476, Col 206–207 (20 May 2008).

  31. David Blunkett, HC Debs, Vol 476, Col 209 (20 May 2008).

  32. Per Lord Warner, HL Debs, Vol 698, Col 71 (21 January 2008). Note that, unusually, the Bill had begun its life in the House of Lords and thus the issue was first debated there.

  33. Amendment 108, tabled by Lord Darzi on behalf of the Government.

  34. Amendment 108A, tabled by Baronesses Deech and O’Caithan and Lord Lloyd of Berwick.

  35. Amendment 108B, tabled by Lord Northbourne, Baroness Butler-Sloss and the Earl of Listowel.

  36. Amendment 108C, also tabled by Lord Northbourne, Baroness Butler-Sloss and the Earl of Listowel.

  37. Amendment 101A, tabled by Baroness Deech and Baroness Butler-Sloss. A further proposed amendment was “the child’s need for a father, including whether that child would be disadvantaged by the lack of either a father or a mother” (Amendment 110, proposed by Baronesses Butler-Sloss, Williams of Crosby and Warnock).

  38. The Government’s formulation was passed when the House voted against amendment 108A by 71 votes.

  39. Amendment 56, tabled by Iain Duncan Smith, David Taylor, Claire Curtis-Thomas, Johan Gummer, Michael Ancram and Geraldine Smith.

  40. Amendment 58, tabled by Mark Simmonds and Andrew Lansley.

  41. This is perhaps not surprising given that the Government placed a whip on this issue in the House of Commons. However, it is questionable whether the Government actually needed to do this to ensure the passing of the words “supportive parenting”. A recent analysis of the voting patterns throughout the passage of this Bill suggests a general trend of party-line voting, whether or not a whip was in place: see Philip Cowley, ‘Democracy in Practice’ presentation at ESRC Genomics Forum workshop, The Human Fertilisation and Embryology Act: A Retrospective (12 March 2009).

  42. We are grateful to one of the anonymous referees for making this point to us.

  43. Baroness Warnock, HL Debs, Vol 696, Col 720 (19 November 2007).

  44. See, e.g. Lord Mackay of Clashfern, HL Debs, Vol 696, Col 669–670 (19 November 2007); Baroness Deech, HL Debs, Vol 696, Col 672–673 (19 November 2007); Lord Alton, HL Debs, Vol 696, Col 682–683 (19 November 2007); Lord Northbourne, HL Debs, Vol 696, Col 849 (21 November 2007); Baroness Deech, HL Debs, Vol 698, Col 58–61 (21 January 2008); The Archbishop of York, HL Debs, Vol 698, Col 62–63 (21 January 2008); Geraldine Smith, HC Debs, Vol 475, Col 1097 (12 May 2008); David Burrowes, HC Debs, Vol 475, Col 1131 (12 May 2008); Sir Patrick Cormack, HC Debs, Vol 476, Col 206–207 (20 May 2008); Gary Streeter, HC Debs, Vol 476, Col 225–230 (3 June 2008).

  45. Baroness Deech, HL Debs Vol 696, Col 674 (19 November 2007).

  46. Lord Patten, HL Debs, Vol 697, Col 30 (10 December 2007).

  47. Baroness Butler-Sloss, HL Debs, Vol 697, Col 34 (10 December 2007).

  48. Sammy Wilson, HC Debs, Vol 476, Col 198 (20 May 2008).

  49. Gary Streeter, HC Debs, Vol 475, Col 1109 (12 May 2008).

  50. Lord Alton, HL Debs, Vol 696, Col 681–682 (19 November 2007). For further examples not otherwise referred to see: Baroness Williams of Crosby, HL Debs, Vol 696, Col 687–688 (19 November 2007); Baroness Butler-Sloss, HL Debs, Vol 607, Col 34 (10 December 2007); Baroness O’Cathain, HL Debs, Vol 698, Col 64 (21 January 2008); Baroness Butler-Sloss, HL Debs, Vol 698, Col 67 (21 January 2008) (specifically on the message being sent to fathers’ rights groups); Lord Patten, HL Debs, Vol 698, Col 83–84 (21 January 2008); Iain Duncan Smith, HC Debs, Vol 475, Col 1079 (12 May 2008); Gary Streeter, HC Debs, Vol 475, Col 1109 (12 May 2008); Mark Simonds, HC Debs, Vol 476, Col 188 (20 May 2008).

  51. For a very explicit statement to this effect, see Lord Warner, HL Debs, Vol 697, Col 33 (10 December 2007): “By deleting the wording of the 1990 Act, I believe that we are giving an ambiguous signal to license holders that they do not have to take as seriously the welfare of the child requirements in the 1990 Act. It is a diluted version of the 1990 Act wording”.

  52. See, e.g. Lord Alton, HL Debs, Vol 696, Col 681–682 (19 November 2007); The Bishop of St Albans, HL Debs, Vol 698, Col 70 (21 January 2008); Geraldine Smith, HC Debs, Vol 476, Col 173 (20 May 2008). As one of us has noted elsewhere, similar caveats were frequently entered in 1990 regarding the exemplary parenting provided by many widows: Sheldon (2005).

  53. Baroness Deech, HL Debs, Vol 698, Col 61 (21 January 2008) (our emphasis). The Archbishop of York appears to be searching for just such a requirement in his criticism of the phrase “supportive parenting”: “I am one of these who are totally committed to equality, fairness and justice, but I cannot be persuaded that phrases such as ‘supportive parenting’ equals a mother and a father. It is such a vague phrase. We need to define it to know what it is”: HL Debs, Vol 698, Col 62 (21 January 2008).

  54. Iain Duncan Smith, HC Debs, Vol 476, Col 192 (20 May 2008). Baroness Deech made the same claim in the House of Lords and further criticised the idea of “supportive parenting” as a retrospective standard in the context of a prospective process. While this is true, a similar criticism can be levelled against “the need for a father” requirement, which is nowhere defined and which provides no guarantee that a man present at the time of treatment will remain involved in the child’s life. Baroness Deech, HL Debs, Vol 698, Col 59 (21 January 2008).

  55. Baroness Hollis of Heigham, HL Debs, Vol 696, Col 81 (21 January 2008). For other examples see: Baroness Hollis of Heigham, HL Debs, Vol 696, Col 857 (21 November 2007); Baroness Barker, HL Debs, Vol 696, Col 861 (21 November 2007); Lord Darzi, HL Debs, Vol 696, Col 868 (21 November 2007); Baroness Howarth of Breckland, HL Debs, Vol 698, Col 68–70 (21 January 2008); Baroness Finlay of Llandaff, HL Debs, Vol 696, Col 84 (21 January 2008).

  56. Emily Thornberry, HC Debs, Vol 475, Col 1123 (12 May 2008). Thonberry here echoes a point made earlier by the Archbishop of York, while deploying it to very different effect: “The Government’s proposal to remove the need-for-a-father provision … creates a false dichotomy at the heart of the Bill which places the welfare and needs of the child against their need for a father. Since when did they become competing requirements?” HL Debs, Vol 696, Col 705 (19 November 2007).

  57. Phil Willis, MP, interviewed on 19 March 2009. See further, Dr Turner, HC Debs, Vol 476, Col 183 (20 May 2008): “If we follow the provisions of the Bill, we stand to guarantee supportive parenting. We are almost assured that that child will have two parents. Not only that, but should anything happen to one of those parents, there will be a clearly identified parent with parental rights to look after the child”.

  58. Ruth Deech, interviewed by Julie McCandless on 22 February 2009. See further, Lord Northbourne: “How can we ensure, as far as possible, that children born through IVF get the parenting and family life that they need? The Government have made a good job of it by adding the words ‘supportive parenting’ … but it does not go far enough. … I believe in the importance of both a father figure and a mother figure in a child’s life”: HL Debs, Vol 698, Col 79–80 (21 January 2008).

  59. Lord Lester of Herne Hill, HL Debs, Vol 698, Col 68 (21 January 2008).

  60. As can be seen in the suggestion from one MP that the definition of “supportive parenting” should preclude someone who denies the role of fathers or male role models, Bernard Jenkin, HC Debs, Vol 476, Col 193 (20 May 2008).

  61. Ted Webb, interviewed on 26 January 2009.

  62. Lord Darzi of Denham, HL Debs, Vol 698, Col 55 (21 January 2008).

  63. Amendment 111A, tabled by Lord Northbourne, Baroness Finlay of Llandaff and Lord Listowel.

  64. See Baroness Finlay of Llandaff, HL Debs, Vol 698, Col 448 (28 January 2008).

  65. Lord Darzi of Denham, HL Debs, Vol 698, Col 449–450 (28 January 2008).

  66. Ibid, Col 450.

  67. Dawn Primarolo, HC Debs, Vol 476, Col 192–193 (20 May 2008).

  68. Access to state funding depends not exclusively on clinical factors but also on a range of other considerations, which may have no or only indirect clinical bearing (including e.g. where the patient lives, age of each potential parent, obesity, smoking, and existing children in the family). See Department of Health (2009) for an overview of the practices adopted by individual Primary Care Trusts in determining who should receive access to funded treatment; and Kennedy et al. (2006) for a detailed evaluation of the kinds of criteria adopted for acceptance on an NHS programme, suggesting that the criteria adopted are often arbitrary.

  69. Geraldine Smith, HC Debs, Vol 475, Col 1097 (12 May 2008) (emphasis added). Another example is the amendment tabled in the House of Lords (number 68), which sought to prevent the posthumous registration of female parents, despite this being possible for fathers who were not also the genetic father of the child, since the Human Fertilisation and Embryology (Deceased Fathers) Act 2003.

  70. See, e.g., Iris Robinson, HC Debs, Vol 475, Col 1125 (12 May 2008).

  71. Gary Streeter, HC Debs, Vol 475, Col 1109 (12 May 2008).

  72. Ruth Deech, interviewed by Julie McCandless on 22 February 2009.

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Acknowledgments

We are grateful to the Socio-Legal Studies Association for funding the costs of the interviews that this article draws upon, to our interviewees for taking the time to share their insights into the reform process with us, and to the two anonymous reviewers from Feminist Legal Studies for their comments.

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Authors and Affiliations

  1. Law Department, London School of Economics, Houghton Street, London, WC2A 2AE, UK

    Julie McCandless

  2. Kent Law School, Eliot College, University of Kent, Canterbury, CT2 7NS, UK

    Sally Sheldon

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  1. Julie McCandless
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  2. Sally Sheldon
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Correspondence to Sally Sheldon.

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McCandless, J., Sheldon, S. “No Father Required”? The Welfare Assessment in the Human Fertilisation and Embryology Act 2008. Fem Leg Stud 18, 201–225 (2010). https://doi.org/10.1007/s10691-010-9164-z

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