Human Fertilisation and Embryology (Amendment) Regulations 2024
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Baroness Merron
That the Grand Committee do consider the Human Fertilisation and Embryology (Amendment) Regulations 2024
Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, these important regulations were laid before the House on 15 May 2024 by the previous Government, and one of my early tasks in post was to approve that this change in legislation be put before Parliament. I am pleased that we have secured this time today and grateful for stakeholders’ patience.
This legislation brings us one step closer to extending the chance to start a family. The Human Fertilisation and Embryology Act 1990 provides the legislative framework for regulating fertility treatments and the use of gametes and embryos in the UK. These draft regulations amend two aspects of Schedule 3A to the 1990 Act, which were inherited from the European Union’s tissues and cells directive 2006/17/EC.
The first issue we are seeking to address in these regulations is where “partner donation” is defined as being between a man and a woman who are in an intimate physical relationship, which excludes female same-sex couples. We are in an age where social attitudes to same-sex couples and family formation are very different and, alongside this advancement in attitudes, assisted reproduction techniques have developed that now allow both female partners to take part in the creation of a child. This is through reciprocal IVF where one partner donates her egg to make an embryo with donor sperm, forming a biological link to their child; then the other partner undergoes IVF, becomes pregnant and delivers their child.
Legislation has not kept pace at all with these advances. Currently, female same-sex couples who undergo reciprocal IVF as a non-partner donation are required to have additional screening for infectious and genetic diseases. This leads to an additional financial burden for female same-sex couples undergoing this treatment. It can cost more than £1,000 when compared to opposite-sex couples undergoing IVF using their own gametes, where there is no clinical reason for the screening.
The second issue we seek to address under the 1990 Act is where a person living with HIV cannot donate their gametes to create a family, unless it is with a partner in an opposite-sex couple. Thankfully, through the advances in the treatment of HIV, such as anti-retroviral therapy, the risk of transmission is now regarded as negligible through unprotected sexual intercourse and by extension, gamete donation.
The proposed regulations would allow people with HIV who meet certain conditions to donate their gametes to known recipients, where certain conditions are met. These are: that they have an undetectable HIV viral load of less than 200 copies per millilitre, shown by two tests prior to donation; that they have been receiving anti-retroviral treatment for at least six months prior to donation; and that the recipient knows of the donor’s HIV diagnosis and provides informed consent.
The proposed regulations will also modify the definition of partner donation to include female same-sex couples, allowing them to undergo the same testing requirements as opposite-sex couples. The regulations also create a new defined term of “partner donated egg” and exempt these donations from the requirement to comply with more stringent screening criteria. These policy changes have been adopted following advice from the Advisory Committee on the Safety of Blood, Tissues and Organs.
Lord Evans of Rainow (Con)
My Lords, when I came here today, I did not think I would be hearing about Enoch Powell. I think that, if he were here today, he would be very interested in what we have been debating. Enoch Powell’s consistency was Wolverhampton South West. In the 2010 election, a colleague of mine of Asian background, a Sikh, won by the same majority as Enoch won it by in 1950. I am glad to say that Mrs Enoch said that Enoch would have been delighted by my Conservative colleague Paul Uppal winning that seat. It shows that people change over time. I wish he were here to hear what I am about to say.
I welcome these regulations laid before us by His Majesty’s Government. They bring forward the plans from May this year that were established by the Conservative Government. Now, as then, we believe that equality under the law is a long-established principle in this country and any improvement towards this end is to be lauded. I am sure that can receive support from all noble Lords.
These regulations mark a further step towards ensuring equal access to IVF services for people living with HIV and for female same-sex couples. It is another stage in the process of ensuring that as many people as possible can fulfil their dreams of parenthood, and it builds on the incredible work done to reduce the stigma associated with HIV, which has for so long prevented people getting tested and seeking treatment. With these changes, we will make it clear that people with HIV can live happy and fruitful lives.
The conditions in these regulations limit donation to those with an HIV viral load of no more than 200 copies per millilitre, meaning that the infection is undetectable and therefore non-transmittable. This requires the donor and recipient to have a personal relationship with one another and ensuring that safeguards are in place to minimise any risks associated with partner donation from people diagnosed with HIV. This will benefit hundreds of couples who have been trying in vain to become parents, and it will also reduce costs relating to IVF.
I hope that His Majesty’s Government will continue in the steps of the previous Conservative Government with efforts to help those living with HIV to have equal access to healthcare services.
Baroness Merron (Lab)
My Lords, I am glad to sense not just support for this draft statutory instrument but recognition in this debate. Following the comments of the noble Lord, Lord Evans, I acknowledge the contribution of my predecessor as Minister responsible for this area, who pressed on with the SI and ensured that it was laid. I am glad to be speaking to it today, as I know he is. I am also pleased to note that Adam Freedman from the National AIDS Trust is with us today. He is most welcome to the Committee. He has come to see the statutory instrument debated. He and his colleagues have patiently encouraged the previous Government and this Government in the right direction, and I thank him for that.
On the points raised by noble Lords, the noble Lord, Lord Wigley, asked whether the devolved Governments were content. I delighted to tell him that they are. He also asked about additional costs. A de minimis assessment was carried out, and it estimates £46,000 to £92,000 for the impact on the fertility sector. Obviously, as has been evidenced and described in this debate, there is a hugely positive impact from the measures within this draft statutory instrument.
I note what the noble Lord, Lord Wigley, said. I put down that he, along with the noble Lord, Lord Winston, and other parliamentary colleagues past and present, are veterans of change and of the Acts we are talking about. As the noble Lord, Lord Scriven, said, this is a journey—one that I suspect is not at its end, although I am pleased to take us further on that journey today. I also pay tribute to the contribution in this area of the noble Lord, Lord Winston, over many years, and to the contributions of other colleagues, who have given it their support and professionalism.
The noble Lord, Lord Winston, asked what the case would be if a recipient were HIV positive. The answer is that they will be able to get IVF. They are not actually affected by these regulations, which impact donors, not recipients. I assure the noble Lord that he was far from wasting the Committee’s time with his comments. I heard clearly his comments about counselling and the need for support. I will look closely at that with officials, following his remarks. I clarify that the £1,000 I referred to was not for IVF. It was an estimated cost for the additional screening required for female same-sex couples, which we are now seeking to correct.
On funding and the issue of availability on the National Health Service, as noble Lords will know, funding for IVF is devolved to ICBs. I am very well aware of the differential provision to different groups and individuals. I will consider future policy options, having picked up this part of the brief and spoken to a number of people about their concerns.
The noble Lord, Lord Scriven, also asked about access to IVF on the NHS. In addition to the point about consideration of advice that I will be getting about improving the service, I want to share his comment about this being just one more step in a positive direction. It is about supporting the fact that families come in all shapes and sizes. A family or a household is a family or a household, and parents are parents. They are there to support and bring up their child in a positive way, and we want to support that too.
I finish by thanking the noble Lord, Lord Evans, for reminding us that one thing that these regulations will do is take us a step on another journey—that of reducing the stigma for those who live with HIV. There have been so many medical advances, which is why we are able to bring this instrument forward today. But attitudes continue to be something to be challenged at times, and I am glad that noble Lords recognise the contribution of the legislative change we seek to make.
We want to ensure that those who want to start a family do not face barriers where there is no reason for those barriers. I place on record my thanks to the organisations who have pushed for and supported these reforms, particularly the National AIDS Trust, Stonewall, the Elton John AIDS Foundation and the Human Fertilisation and Embryology Authority. As I said earlier to the noble Lord, Lord Wigley, I thank all those parliamentarians and others along the way who have got us to this place today.