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.