Draft Human Fertilisation and Embryology (Amendment) Regulations 2024

Andrew Gwynne Excerpts

Tuesday 22nd October 2024 General Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

I beg to move,

That the Committee has considered the draft Human Fertilisation and Embryology (Amendment) Regulations 2024.

It is a pleasure to serve under your chairmanship, Mr Mundell. This is important secondary legislation, and before I begin to unpack its content, I would like to pay tribute to the campaigners that have pushed for these reforms, including the National AIDS Trust, Stonewall and the Elton John AIDS Foundation, to name just a few.

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. The draft regulations seek to amend two aspects of schedule 3A to that Act.

Thank God, HIV is no longer the death sentence it once was. What is more, advances in retroviral treatment mean that people living with HIV can achieve a viral load that is undetectable and therefore untransmissible. In our constituency work, many of us have come across male same-sex couples who wish to start a family through surrogacy, where one or both have HIV. There are hundreds of such cases across the United Kingdom.

The first aspect of the regulations we propose to change would help people seeking donation from a friend or relative with HIV, and it would allow people living with HIV to donate their gametes to known recipients, where certain conditions are met. Those conditions are the following: first, that they have an undetectable HIV viral load of less than 200 copies per millilitre, shown by two tests prior to donation; secondly, that they have been receiving antiretroviral treatment for at least six months prior to donation; and thirdly, that the recipient knows of the donor’s HIV diagnosis and provides informed consent.

To be clear, opposite-sex couples where one or both partners have HIV can have fertility treatment using their own gametes under the current legislation, but they cannot donate to others, and no other people with HIV can donate. The policy change is based on crystal-clear scientific evidence that shows that advances in the treatment of HIV have meant the risk of transmission is now regarded as “negligible”, whether that is through unprotected sexual intercourse or gamete donation.

The Government have adopted this new approach following advice from the independent Advisory Committee on the Safety of Blood, Tissues and Organs. In short, the world has moved on, and our legislation must move with it.

The statutory instrument would also enable female same-sex couples to donate eggs to one another in reciprocal IVF—in vitro fertilisation—or shared motherhood arrangements. Donations within same-sex female couples would undergo the same testing requirements as opposite-sex couples, by modifying the definition of “partner donation”, currently defined as exclusively being between a man and a woman who are in an intimate physical relationship.

Following advancements in assisted reproduction technologies, it is now possible for women in same-sex couples to undergo reciprocal IVF where one partner donates an egg to the other partner, who then carries and gives birth to the child. That allows couples to both play a part in that child’s conception.

Under the current definition, female same-sex couples who have reciprocal IVF must go through additional screening for either infectious or genetic diseases. That can cost more than £1,000 compared with heterosexual couples undergoing IVF using their own gametes. SaBTO, the independent committee that I referred to earlier, has advised that there is no longer any clinical reason for these tests, and this Government agree.

The subject matter of the 1990 Act is reserved, so the regulations will apply across the UK. The instrument is made in exercise of different powers in respect of Great Britain and Northern Ireland. For Great Britain, it is made under the 1990 Act, which provides that regulations may specify technical requirements in relation to the election of donors and laboratory tests for donors of gametes and embryos. For Northern Ireland, the instrument is made under the powers in section 8C of the European Union (Withdrawal) Act 2018.

This Government are committed to resetting our relationship with the LGBT community. I am proud to say that we have engaged extensively with LGBT and HIV organisations to get their thoughts on the proposed regulations, which have been received very positively. We have not prepared a full impact assessment for the instrument because the costs for business fall below the threshold. However, a de minimis assessment has been completed, and the changes should cost the fertility sector within the range of £46,000 to just over £92,000. The costs are expected to be passed on to patients accessing private IVF provision.

In summary, the regulations will unlock the ability for people living with HIV to have a family using their own gametes. The measures would benefit men in same-sex relationships where one or both have HIV and people seeking a donation from a friend or relative with HIV, and they will bring much needed parity between women in same-sex relationships undergoing reciprocal IVF and opposite-sex couples. The draft amendments may seem technical, but they mark another few steps on the long road towards equality. We should not hesitate to take them, and I commend the regulations to the Committee.

--- Later in debate ---

[Andrew Gwynne]

I thank hon. Members from across the House for their clear indication of support for these landmark measures. I jest with my hon. Friend the Opposition spokesperson—I call her my hon. Friend, because we have known each other for a number of years—and often remind her that she was once in this ministerial position for a very short period. I hope that she gets to shadow me longer than I shadowed her—I think she has already broken the record. I always enjoy the fact that she comes to these proceedings with a really open mind. As I hope I was supportive to the previous Government on these measures, she has proven the cross-party worth of being supportive to the new Government on measures that we both want to see put in place. I thank her sincerely for the official Opposition’s support.

We want to ensure that people who want to start a family do not face barriers without good reason. I thank the LGBT and HIV charities that have pushed for and supported these reforms, and the Human Fertilisation and Embryology Authority for its constructive work. I am also pleased to welcome Adam Freedman from the National AIDS Trust to the House today to see the SI debated. He has patiently encouraged Governments of both stripes to move in the right direction.

I note that safety about receiving donations from those with HIV will be a concern to some. Let me offer further reassurance that the Advisory Committee on the Safety of Blood, Tissues and Organs has given these issues intense scrutiny, reviewing the most up-to-date clinical evidence, to ensure that such donation by people with an undetectable viral load is safe. The evidence is published on its webpage on gov.uk.

The changes will help to benefit hundreds of couples. That includes same-sex male couples where one or both have HIV in a surrogacy arrangement, female same-sex couples planning shared motherhood, and those seeking known donation from a friend or relative with HIV. The SI also clearly demonstrates this Government’s intentions to address equalities and opportunities for all, regardless of gender, race, sexual orientation or how they wish to form a family.

I will take the points made by the Opposition spokesperson in reverse order. On the Windsor framework, it is not for me to decide whether that is a bonus of Brexit. We operate under that different legal framework in this brave new world—having left the European Union and respecting the Good Friday agreement—when we legislate on certain areas relating to Northern Ireland, as opposed to the conventional legislative processes that cover the rest of Great Britain. I will leave it to others to judge whether that is a bonus or otherwise, but that is the system that we are in.

On NHS screening, the implications for the NHS, and the family issues that she raises, I will write to the Opposition spokesperson and the Committee to give assurances about those areas, as the powers that be from God have not reached mortal man in time. But I will ensure that all Committee members get that divine guidance when it comes—[Interruption.] If you will forgive me, Mr Mundell, I have just been passed a tablet of stone from Mount Sinai. It tells me that the HFEA code of practice prevents incestuous donations and provides guidance on donations to achieve that end—somebody could obviously write a prescription with the note I am reading as well. On anything else that is left outstanding, the offer of writing to Committee members still stands.

[The Chair]

I know that many new Members are finding their way in relation to these Committees, but it is important that people attend on time. These sittings, as you have seen, tend to be rather short, and therefore being here for the full proceedings, if you are going to attend, is important.

Question put and agreed to.