Committee stage - 5th June 2008
*Thank you to Nalalie Gamble for the document and highlighting*
Human Fertilisation and Embryology Bill 2008
Hansard 5 June 2008 (Committee Stage) – On Embryo Storage
Clause 15 Conditions of storage licences
The Chairman: With this it will be convenient to discuss new clause 2—Extension of statutory storage period for treatment of blood relatives
‘(1) The Human Fertilisation and Embryology (Statutory Storage Period) Regulations (S.I. 1991/1540) are amended as follows.
(2) In regulation 2(1) for “paragraph (2)” substitute “paragraphs (2) and (2A)”.
(3) After regulation 2(2) insert—
“(2A) The circumstances referred to in paragraph (1) are that the gametes were provided by a person who has given written consent for them to be used by another person—
(a) who is a blood relative of the person providing the gametes,
(b) whose fertility was, in the written opinion of a registered medical practitioner, significantly impaired on the date on which the gametes were provided, and
(c) who was aged under 45 on the date on which the gametes were provided.”.’.
Dr. Harris: I wanted to draw attention to something that has already been touched upon: a problem with not only the current storage legislation, but the regulations. The Minister will be aware of the case that I am going to cite on behalf of my hon. Friend the Member for Hazel Grove (Andrew Stunell), who has been assiduously pursuing the issue for one of his constituents. He raised it on Second Reading and wrote to the Minister on 14 May to set out the problems. I thought that it would be useful to summarise the situation and to quote from that letter, with the permission of my hon. Friend.
The problem is that the regulations for storing gametes were set by the Human Fertilisation and Embryology (Statutory Storage Periods) Regulations 1991, which could, in theory, be amended under the current Bill. In this case, there is a woman whose daughter suffers from Turner syndrome. That is not life-threatening—a relatively normal life can be led with treatment—but one of its features is infertility. In this case, the mother wishes to donate her own eggs so that her daughter will be able to have children by IVF treatment in the future. The problem is that the time limit for storing gametes is set at 10 years. Regulations state that gametes must be donated before the donor reaches the age of 36, which creates a problem in this family and, presumably, others. If the mother donated before the age of 36, the 10 years would expire when her daughter was still only 18 and therefore extremely unlikely to be ready to use the eggs.
The Committee will be aware that the current regulations provide for an exception if the gametes are stored for the use of the donor. However, according to a letter received by my hon. Friend the Member for Hazel Grove from the HFEA, the reason for the 10-year limit is that it is best if clinics are not overburdened by the number of samples in storage. I accept that there is a regulatory issue, so the question is whether there could be exceptional circumstances in which samples might be permitted to be stored for longer than 10 years, for example if donated eggs are intended for another family member who is infertile, which is the case that my hon. Friend has made in a number of forums. Would new clause 2 achieve that? If not, might an amended version?
There is discretion on retrieving eggs after the age of 36. In exceptional circumstances, clinics can use eggs from women over the age of 36, but I think that everyone is aware—the Minister is, of course—that fertility and thus the efficacy of the treatment diminishes rapidly after that point.
Even if the drafting of new clause 2 is not perfect—if there are imperfections, it is through no fault of my hon. Friend—I hope that its intention is clear. It states that an exception can be made when a person “has given written consent for them to be used by another person...(a) who is a blood relative of the person providing the gametes...(b) whose fertility was, in the written opinion of a registered medical practitioner, significantly impaired on the date on which the gametes were provided, and...(c) who was aged under 45 on the date on which the gametes were provided.”
This is not a unique case—I am conscious of the fact that we should not legislate to provide for an individual case—and I wonder whether an amendment could be made. Obviously, we do not need primary legislation, so I would understand if the Minister said that the Government wished to consider the matter themselves and introduce their own regulations to allow for an exception.
Mark Simmonds: My concern with new clause 2 is about the extremely broad nature of the phrase “blood relative”. Has the hon. Gentleman thought about narrowing it down to a sibling, son or daughter of the donor to exclude third cousins twice removed and so on?
Dr. Harris: That is a fair point. There are questions about whether the wording is broad. I am not wedded to the wording of the new clause, so I accept that it might need further work. I have never claimed to be a parliamentary draftsman, despite what was said earlier, and I do not seek to be one. My cup overflows already.
I wish to make a further point about surrogacy. I have not tabled an amendment on this, but any provision would be very similar to new clause 2, so the matter relates to this debate. The Human Fertilisation and Embryology (Statutory Storage Period for Embryos) Regulations 1996 specify the period for which gametes and embryos respectively can be stored in cases where the patient is, or will become, permanently infertile. In extending the normal five-year storage period, the regulations enable patients to preserve their last chance to conceive their own genetic child until the female patient in question is approximately aged 55. Although the Bill extends the normal embryo storage period from five to 10 years, which I think is a good idea, it does not amend the special regulations for extended storage. I think there is a case for the regulations to be updated to benefit patients conceiving their own children through surrogacy. Surrogacy patients are explicitly excluded and, in practice, it seems to me—and to those advising me—that it is utterly arbitrary that a woman who has had her ovaries removed due to cancer can store her eggs and embryos until she is 55, but a woman who has had a hysterectomy due to cancer can store her eggs or embryos for only 10 years. That seems to be somewhat unfair, so I was wondering if the Minister would consider there to be scope to bring the situations more into line—if not in this Bill, through regulations.
Dawn Primarolo: I ask the hon. Gentleman not to press new clause 2 to a Division because I think that he raises a number of difficult issues with regard to some aspects of the regulation. As he has pointed out, there are regulation-making powers under the 1990 Act, and the Bill allows changes to regulations, such as those relating to statutory storage periods of gametes.
The hon. Gentleman made the point that it is not always wise to make primary legislation on the basis of one case. Perhaps if I could tell him when the regulations will be available for consideration, he might rightly feel—as I do—that that would be the appropriate place to raise these considerations. New policies will be proposed in regulations and they will need to be consulted on. The timetable for those regulations is such that the drafts will likely be available toward the end of this year.
I think that the points that the hon. Gentleman raises could be appropriately dealt with in that consultation and the consideration of those regulations, rather than through new clause 2, because there will be other points to consider. For example, the hon. Gentleman touched on surrogacy, which is not addressed by the new clause. There might well be other exceptional circumstances, but it would be wise to address them all in one place in the regulations.
I hope the hon. Gentleman and the hon. Member for Hazel Grove accept that the Government see that this issue needs to be addressed and intend to ensure that that happens during the consideration of the regulations, which will take place before the end of the year. That will be the appropriate point of the consultation to add in some of the points that the hon. Gentleman is suggesting.
Dr. Harris: I thank the Minister for that response, although she did not necessarily say that she agreed that there should be a solution. I think she did accept that there was a problem in this case.
Dawn Primarolo rose—
Dr. Harris: I am sorry if I misunderstood.
Dawn Primarolo: No, no, with respect, I do not know whether there will be a solution. I agree with the hon. Gentleman that it would be desirable to find a solution and the appropriate vehicle for this is the regulations. At this time, I do not know, so that is my only point.
Dr. Harris: I apologise to the Minister. I am satisfied that she recognises that there is a problem and that she suggests that rather than trying to amend primary legislation through new clause 2, or another version of it, the appropriate time would be either during the drafting of regulations, or their redrafting following the consultation. I am delighted because she has confirmed that there will be a consultation on drafts, which we discussed earlier. That is always good when regulations are being considered because once they are laid, it is impossible to amend them unless the regulations are withdrawn.
I am grateful to the Minister for indicating that she hopes that the drafts will capture, if possible, a solution to a problem that she acknowledges. I am sure that my hon. Friend the Member for Hazel Grove, who might be listening to the debate using new or old technology, will share my gratitude—and, I suspect, that of his constituent—to the Minister for her positive response.
Question put and agreed to.
Clause 15 ordered to stand part of the Bill.
Hansard 10 June 2008 (Committee Stage) – On legal parenthood provisions and maternity leave
Clause 33
Meaning of “Mother”
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: Clause 33 defines the meaning of “mother”. It states:
“The woman who is carrying...a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”
That definition dates back to the 1990 Act. I want to raise at this point, under a stand part debate on this clause, surrogacy arrangements affecting the mother and the definition of a mother. There are some complex and difficult issues that relate to the mother in surrogacy arrangements, which I do not think will be discussed in relation to any other part of the Bill.
Surrogacy arrangements are recognised in British law as long as no payment is made and only reasonable expenses are reimbursed. In the UK, surrogacy arrangements are not a binding agreement on either party; there is very little that the intended parents can do to secure their position prior to birth, even in gestational surrogacy—where the baby is genetically related to both intended parents and not to the surrogate.
Under the 1990 Act, if a child is being carried by a woman as a result of being artificially inseminated or has had an embryo introduced into her, she is to be treated as the mother for all purposes even if she is not genetically related to the child, and her husband will be treated as the father unless it is shown that he did not consent to the treatment. That parental consent and status can be lost only through a parental order or an adoption, and, I understand, that that is retained in clause 35, to which the hon. Member for Oxford, West and Abingdon has tabled an amendment. In the United Kingdom, parents who wish to use surrogate mothers then have to adopt the child or apply for a parental order, which involves a great deal of state intervention. Parents can be refused adoption orders even though the child is their genetic offspring. That is not the case if the surrogate is not married, as the genetic father can treat the child as his legitimate offspring and apply for a parental order much faster.
When these issues were debated in another place the Minister there promised that the Government would give those anomalies further consideration. Can the Minister state for the record today where those considerations have got to?
I shall put on the record two or three further complexities in this already very difficult area. There is an argument that a single commissioning genetic parent—the women who has had a child conceived from her egg and the single father—are discriminated against under the new provision. The law elsewhere in the world is not the same as it is in the UK, which adds complexity. For example, in the United States of America the legal parents of the offspring are the commissioning parents, not the parent who bore the child. Therefore, a child born by commissioning parents in the United States could be parentless and stateless. That may be considered under other pieces of legislation. The British Nationality (Proof of Paternity) Regulations 2006 may be illegal.
It will be helpful if the Minister could put the Government’s position on the record, especially in the light of the significant immigration into the UK from the European Union since the EU accession countries joined in 2004. Indeed, under EU law there is—correctly—more leeway for individual states to make their own appropriate legislation and regulations in this area of law, because it is so sensitive. There is therefore no consistency across the European Union.
Dr. Harris: Surrogacy is a big issue. I am in some difficulty as I have amendments tabled to clauses 35 and 54, which touch on surrogacy issues, albeit not necessarily those mentioned by the hon. Gentleman. I am not suggesting that you should consider him out of order, Mr. Hood, but we have to be cautious because we are going to deal with some of these issues later.
The Chairman: Order. The hon. Member for Boston and Skegness was not out of order.
Dr. Harris: That was the point that I was making. I was not rising to make a point of order, Mr. Hood. If I had wanted to say that the hon. Gentleman was out of order, I would have said that, but I did not think that he was. However, I am concerned about how far we can go in the discussion and I am seeking your advice, Mr. Hood, as there are amendments to clause 35 that deal with UK citizens seeking surrogacy arrangements abroad.
Mark Simmonds: My understanding is that the amendments to clause 35 relate to the husband of the surrogate being considered the father. The points that I made under clause 33 related specifically to the meaning of “mother” as detailed in the provisions of clause 33.
Dr. Harris: That is helpful. I wanted to raise another issue about surrogacy that I hope that the Minister will reflect on. It builds on the point made by the hon. Member for Boston and Skegness. The law in this country provides for surrogacy, but not for equality for surrogate parents in respect of maternity leave and employment protection. We cannot go too far down that path during debate on a health Bill, but as the Bill makes provision for surrogates, and as I know the Government are keen to ensure that there is no discrimination in legislation and that the welfare of the child is paramount, have the Government given any thought to whether it is appropriate to ensure maternity leave rights and employment protection for surrogate parents?
Part of the problem is that, as we have discussed, until a parental order is obtained, one is not the legal parent. By the time one is entitled to take some of the leave available, it is rather after the fact, as one wants to take such leave as early as possible. As I am attempting to stay in order, what I am asking is whether the Government are sure that nothing more can be done through conversations with other Departments, particularly the Department for Business, Enterprise and Regulatory Reform, to ensure a system that supports children and allows the creation of new families with children who are loved and wanted. The mothers and fathers involved in such arrangements—they are few—should have the opportunity to benefit from the arrangements available for other parents, arrangements that the Government introduced. I certainly support those arrangements and I think that there is full support for them across the country and the House.
I had better leave my remarks there. I was just probing that particular matter.
Dawn Primarolo: Mr. Hood, I am sure that you will stop me if I move beyond the remit of the clause. Clause 33 deals with the meaning of “mother”, replacing section 27 of the Human Fertilisation and Embryology Act 1990. It provides that a woman who carries a child as a result of assisted conception, wherever and however it took place, is the mother of the child. It also provides that if the child is then adopted, the woman who carried the child will no longer be the mother.
The hon. Gentlemen have touched on the specific considerations around surrogacy, and we will do so again at various points in the next few clauses. The hon. Member for Boston and Skegness asked me about our considerations—what we reflected on and what our conclusions were. I had intended during debate on amendments Nos. 171 and 172 to say what our view is and why we have taken it with regard to who is considered to be the father of the child and situations where the couple is married. It may be more appropriate to respond to his point then, when I will be happy to pick up any further points.
Surrogacy is an option of last resort for couples who cannot have a child by other means. The Bill extends the categories of couples who can apply for a parental order. The new provisions also make changes in terms of assisting organisations, but there is no international agreement governing or setting minimum standards for surrogacy arrangements. In the United Kingdom, the law applies to anyone who is resident, whether or not they are British citizens and whether or not their residency here is permanent.
Complicated arrangements are necessary, especially when surrogacy arrangements have been made outside the UK. Immigration law covers that. In exceptional circumstances, that goes to the heart of recognising the woman who carries the child as the mother and, if she is married, her legal husband as the father, unless he did not give consent, on the basis that a mother in surrogacy could decide not to give up the child. How immigration and employment law, the birth certificate, parental responsibilities and adoption rights interact is incredibly complex, but we attempt to cover such interaction through various clauses in the Bill.
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Perhaps with a little latitude I could respond to the question that the hon. Member for Oxford, West and Abingdon asked about the rationales for maternity and paternity leave and what the Department for Business, Enterprise and Regulatory Reform could do. Maternity leave and pay was introduced primarily to protect the health and safety of the mother following the birth of the child and to help women to take time off in the weeks around birth. It is clearly predicated on such events—women are required by law to take a period of maternity leave after the birth of the child.
Rights to adoption leave and pay enable the adoptive parent to take leave from work. The idea that we would duplicate and give different parents access to the same leave, payments and rights when transferring legal rights is complicated. It is not wholly appropriate to discuss it under the Bill, and I feel that I would be straying if I did so. I merely wish to indicate to members of the Committee that, as we discuss these clauses, but not now, certain things will need to be said about the legal recognition of surrogacy, its interaction with international law, and the rights of the mother who carried the child.
The Government do not consider that there is unlawful discrimination against single people in such situations, which was mentioned, because being single has not been recognised as a protected status for the purpose of the European convention on human rights. I shall say more about that when we consider other amendments to clauses that we have not yet discussed. However, the measure is not about the quality of parenting or the ability of a single parent to be an excellent parent, but the complex interaction of the courts’ decisions on surrogacy and the current law in this country.
I have been careful to indicate sensitivity to the Committee, without going beyond the scope of the clause. I feel that the hon. Gentlemen will want to comment when we discuss subsequent clauses and amendments, because their principal points will come up in more detail. I hope that that is in order and helpful to the Committee.
The Chairman: The Committee managed its way through that stand part debate with a little flexibility, and still managed to keep in order. That allowed hon. Members to make one or two important points.
Question put and agreed to.
Clause 33 ordered to stand part of the Bill.
Clause 34 ordered to stand part of the Bill.
Clause 35
Woman married at time of treatment
Dr. Harris: I beg to move amendment No. 171, in clause 35, page 36, line 19, after ‘then’, insert
‘unless W is a surrogate mother within the meaning of section 1(2) of the Surrogacy Arrangements Act 1985 and’.
The Chairman: With this it will be convenient to discuss amendment No. 172, in clause 42, page 40, line 4, after ‘then’, insert
‘unless W is a surrogate mother within the meaning of section 1(2) of the Surrogacy Arrangements Act 1985’.
Dr. Harris: The amendments are to do with surrogacy, which we have been discussing, and are intended to deal with what I consider to be an anomaly in the parenthood provisions. I believe that it is rectifiable, and that not sorting it out will cause avoidable problems. I shall argue that those problems can be solved by way of the amendments or something similar. There does not appear to be a problem in so doing, and significant benefits would result. To support my argument, I shall read from a briefing that I have been sent by Natalie Gamble, a solicitor in family law, who has raised this issue on a number of occasions with me and in public.
If the surrogate is married, neither commissioning parent will be a legal parent at birth. That can cause particular difficulties in respect of cross-border arrangements, which were touched upon earlier, and in respect of the standard UK arrangements. For example, if the intended parents use a married surrogate, they will have to wait until they have a parental order to acquire parental responsibility—a process that can take up to nine months or even a year—and in the interim, they will have no authority to make decisions for their child. That is in cases in which there is no dispute about who is looking after the child, the surrogate mother provided surrogacy within the law, and the child is living with the intended or commissioning parents. In turn, that can cause problems over issues such as child immunisation, because the legal parents need to sign the consent forms.
The solution that was proposed to me, which I now put to the Committee, is to exclude the rule that a married surrogate’s husband is the legal father in surrogacy cases. Although that rule is critical for donor insemination parents, it is not problematic for the law to distinguish between donor insemination and surrogacy cases. The intended father in the vast majority of surrogacy cases could therefore be the legal father at birth. That would give him the general entitlement to act as a parent and enable the intended mother to acquire parental responsibilities before getting the parental order, using the step-parent parental responsibility rules.
The amendments provide a quick way of ensuring that the intended parents—the social parents looking after the child—are able to make those decisions rather than having to track a surrogate and her husband who have ended their relationship with that child and may live many miles away, or even abroad.
Robert Key (Salisbury) (Con): On a point of order, Mr. Hood. The hon. Gentleman has been reading a long quote from a document of which the Committee does not have sight. He has based an amendment on that document, a briefing that he received from I know not where—I did not catch where it came from, although he mentioned someone’s name. We cannot be expected seriously to consider the amendment on that basis. It simply is not on.
The Chairman: It is in order for an hon. Member to receive a briefing from any source. If they think it appropriate to refer to it in Committee, that is perfectly in order.
Dr. Harris: I was not quoting from any document—[Interruption.] No, I said that I had received a briefing. The Minister receives briefings from officials.
The Chairman: Order. I have given my response to the point of order. I invite the hon. Gentleman to carry on discussing his amendments.
Dr. Harris: I am keen to do so. I think that I have been in order, and I have not in my time ever had problems receiving advice.
I have actually finished my point: the amendment would enable decisions to be made in the best interests of children quicker.
Mark Simmonds: If the husband of the surrogate simply did not consent to the treatment, would that not avoid his being the father and thereby negate the necessity of the amendment?
Dr. Harris: Clause 35, which relates to a woman married at the time of treatment, states:
“If...at the time of the placing in her of the embryo or of the sperm and eggs...W was a party to a marriage, and...the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage...the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs”.
That is the type of case that the hon. Gentleman raises, but I am talking about a case in which the husband of the surrogate is happy for the woman to act as a surrogate. He is clearly consenting to the surrogacy arrangements taking place and wants to give the child to the intended parents.
Surrogates provide a wonderful service in such cases, and we have clear laws about the non-transmission of money in that situation. Unless we are to break down surrogacy arrangements in their entirety, which has never been done under Conservative or Labour Governments since 1985, when the provisions were formalised in so far as they have been formalised, it seems reasonable to make the provision that I have described.
I hope that I have dealt with the hon. Gentleman’s point. If the man did not consent, a surrogacy situation would be being created against the wishes of the husband. That would create at best an artificial situation in which he would have to indicate that he was not consenting. That would not be appropriate. The same point applies to amendment No. 172, which relates to a woman in a civil partnership at the time of treatment.
I have case studies, to which I would have liked to refer, but given that the hon. Member for Salisbury objects to the reading into the record of evidence or the giving of examples, I will not do that. However, there is clearly a problem for people in the situation that I have described. I think that the amendment would solve the problem and would not create any new problems. I hope that the Minister will look kindly on it.
Dawn Primarolo: The subject of surrogacy is complex and fraught with difficult ethical considerations. The Human Fertilisation and Embryology Act 1990 and the Bill recognise that by providing elements of certainty, although it is not possible to provide complete certainty, because of the complexity.
One of those elements is that if the surrogate mother is married, her husband is treated as the father of the child unless it is shown that he did not consent to the treatment—a point that has been made. That provision reflects the common law presumption that a child born to a woman in a marriage is also the child of her husband. I shall return to that principle in a moment because it is a very important principle that the legislation is designed not to breach. The Bill extends the provision to civil partners, so that the mother’s civil partner is the parent of a child born through assisted conception unless it is shown that she did not consent to the treatment. That reflects the fact that the civil partnership is given the same status as marriage, in recognition of the parental responsibilities.
The hon. Member for Oxford, West and Abingdon has tabled amendments that would introduce an exception to that principle by explicitly removing the provision for surrogacy cases. If a surrogate was married or in a civil partnership, parenthood would be removed from her husband or civil partner, thereby making it possible for the man in the commissioning couple to be registered as the father from birth if he was the genetic father.
5.15 pm
I understand that the intention behind the amendments is to make it easier for commissioning parents to obtain parental responsibility where the surrogate is married and to ensure that a commissioning couple who have a child using a surrogate abroad do not face immigration problems on returning to the UK with the child. Surrogacy is, however, a fairly sensitive and complex issue, and I suspect that members of the Committee will hold differing views on it.
Although surrogacy arrangements are not illegal, they are not enforceable by the courts. That is to avoid a surrogate being forced to hand a child to whom she has given birth over to someone else. The clear principle, which the Bill maintains, is that the woman who gives birth to the child is the mother. Having given birth, she may change her mind about handing the baby over to the commissioning couple, and the law recognises that she is entitled to do so. That may be a fraught issue for commissioning couples, but the law is there for specific reasons, and those principles have underpinned surrogacy thus far.
I recognise that the situation that we are discussing would be upsetting, particularly for the commissioning couple, but we must look to the child’s welfare. Removing a baby from a mother against her wishes is not something that the 1990 Act or the Bill encourages, but the amendments would undermine that position. In the unusual circumstance of a surrogate choosing to keep the baby, taking fatherhood or parenthood away from her partner and giving it to the commissioning father—if he is the genetic parent—would open the way for the commissioning couple to claim custody of the child. That would open up untold difficulties and problems.
As I have said, this is a highly sensitive and complex issue, which is fraught with difficulties. In those circumstances, the Committee should not add further difficulties to what is already a difficult situation. That would complicate matters in a way that was not in the child’s best interests, and it is the child’s best interests which continue to anchor our considerations. I recognise that the amendments seek to address a sensitive situation by removing parenthood from the married man in particular situations. However, we cannot breach the other principles that I have outlined, with the consequences that that would have for the child.
The hon. Gentleman touched on some of the other difficult issues relating to surrogacy, such as immigration, parenting orders and adoption. After a lot of consideration by the Government following the debate in another place, I cannot see that it makes sense to move away from the key principles that I have identified. I hope that that puts on the record why the Government remain of that view, and that the hon. Gentleman will reflect and withdraw his amendment.
Dr. Harris: I understand the Minister’s point. In the circumstances—which I think are very rare, but could happen—where the surrogate mother does not wish to pass responsibility for the care of the child over to the intended or commissioning parents, giving the commissioning father legal status would give them grounds for custody-type hearings. I doubt that such hearings would be successful, but they could occur and I accept that that is a drawback to the amendment.
In the vast majority of cases, the advantages in assuring quicker parental rights for the commissioning parents—those who look after the child, make decisions for the welfare of that child and should not have to wait as long as they do under current procedures—outweigh those drawbacks. However, I see the Government’s point. A balance must be found, and the Government feel that even in a very small number of cases, a potential legal tug of war between an intended father with parental rights and the surrogate mother would not be edifying. Nothing in this area is edifying when it goes to law, and perhaps the Government recognise that the path of least resistance in respect of creating situations where that might occur, is not to accept the amendments.
As I said, I am disappointed. One would have thought it possible for the law to be changed to ensure that there was no hope of a successful application in such a case. It would mean that, even where the commissioning father had parental rights, he would not be able to exercise them successfully in a legal case in which the surrogate mother was very clear that she did not want to give up the baby. The situation would be the same as it is now, except that in the vast majority of cases, transition would be smoother.
Clearly, those provisions are not in my amendments and the Government have not had a chance to consider that point. I will reflect on what the Government have said and see whether there is a way of dealing with the problem that the Minister has raised. In the meantime, I beg to ask leave of the Committee—including the hon. Member for Salisbury, for whom I have a great deal of respect—to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: Briefly, one of the issues that has come out of the interesting debate that we have had about surrogacy—both in clauses 33 and 35, and on the amendments just withdrawn by the hon. Member for Oxford, West and Abingdon—is that there is concern in legal circles about the current working of the legislation in the Bill, the 1990 Act, and the Surrogacy Arrangements Act 1985. The 1985 Act was nearly 25 years ago, and it may be appropriate both regarding mothers and surrogacy, and in relation to the point made by the hon. Member for Oxford, West and Abingdon about fathers and consent and surrogacy—
Dr. Ian Gibson (Norwich, North) (Lab): Does the hon. Gentleman agree that there is doubt in some of our minds about the commercial interests of the lawyers in this business? Some of their views, as much as they may be pure, may also be pure for the money that is involved. How do we discern who is in it for the money and who is in it for the principle?
Mark Simmonds: The hon. Gentleman makes a reasonable point, although certainly, those lawyers with whom I have discussed the matter and from whom I have received briefing did not give the impression that they were in it for the money. They are in it to clarify exactly what the law and its intentions are and how that interrelates with other Acts of Parliament, so that they can advise their clients officially and properly on the law and where they stand. However, I accept that it is a complex matter. I also accept that we should not go down the route of commercialising surrogacy, but there are clear inconsistencies. It would give the Committee some comfort if the Minister were prepared to say that she would get people in her Department to consider it and, at some appropriate point, to bring it back to the House for discussion.
Dawn Primarolo: I draw the hon. Gentleman’s attention to the fact that the Government gave a commitment to the scrutiny Committee on the Bill that we would review the regulations dealing with surrogacy. It is a delicate and difficult issue, precisely because the Committee raised a number of issues that we were unable to deal with at that point. I believe that the Committee accepted that that was a sensible way forward. That is intended to happen after the Bill has completed its progress and received Royal Assent. It is necessary to connect with other policy areas and to reflect on some of the points made. I am not saying that our minds are made up as to the conclusion. It is worthy of reflection and consultation. I am happy to confirm that, in answer to both hon. Gentlemen’s concerns.
Question put and agreed to.
Clause 35 ordered to stand part of the Bill.
Clause 36 ordered to stand part of the Bill.
Hansard 12 June 2008 (Committee Stage) – on surrogacy for single people
Clause 54 Parental orders
Dr. Pugh: I beg to move amendment No. 161, in clause 54, page 45, line 41, leave out ‘made by two people (“the applicants”)’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 162, in clause 54, page 45, line 42, after second ‘the’, insert ‘applicant or’.
No. 163, in clause 54, page 46, line 1, after ‘not’, insert ‘the applicant or’.
No. 164, in clause 54, page 46, line 4, after first ‘of’, insert ‘the applicant or’.
No. 165, in clause 54, page 46, line 7, leave out subsection (2) and insert—
‘(2A) An application for a parental order may by made by—
(a) a couple or
(b) one person who is not married or a civil partner.
(2B) In this section, a couple means—
(a) a married couple or
(b) civil partners or
Column number: 247
(c) two people (whether of different sexes or the same sex) who are living together in an enduring family relationship and who are not within the prohibited degrees of relationship to each other.
(2C) A parental order may be made on the application of one person who is married or is a civil partner if the court is satisfied—
(a) that the person’s spouse or civil partner cannot be found,
(b) the spouses or civil partners have separated and are living apart and the separation is likely to be permanent, or
(c) the person’s spouse or partner is by reason of ill health, whether physical or mental, incapable of making an application for a parental order.’.
No. 166, in clause 54, page 46, line 13, after first ‘the’, insert ‘applicant or’.
No. 167, in clause 54, page 46, line 17, after second ‘the’, insert ‘applicant or’.
No. 168, in clause 54, page 46, line 18, after ‘applicants’, insert
‘(or in the case of a single person, the applicant)’.
No. 169, in clause 54, page 46, line 20, after ‘applicants’, insert
‘(or in the case of a single person, the applicant)’.
No. 170, in clause 54, page 47, line 10, after ‘by’, insert ‘a single person or by’.
Dr. Pugh: I have the challenging job of moving an amendment tabled by my hon. Friend the Member for Oxford, West and Abingdon, which I will endeavour to do relatively briefly.
Dawn Primarolo: Much more briefly.
Dr. Pugh: Indeed. I preface this by saying that my hon. Friend and I do not see eye to eye on many issues in the Bill, but I am doing this in a spirit of charity and comradeship and not necessarily because I see it as anything other than a probing amendment to which the Minister may want to respond.
Before I discuss the amendment, I have a brief observation about the whole clause. Throughout the previous part of the legislation, when we were trying to tease out the rights of the person who has given non-genetic material—cytoplasm—to the IVF process, we rigidly defined motherhood along the lines of child bearing. I have got that clear in my head. The mother is the person who bears the child and not the one who produces the genetic material that forms the child. I understand that. Here, interestingly, we decouple that. We allow it to be decoupled in a way which is probably quite novel. Always under surrogacy, there has been some decoupling. Now we have the clear concept of motherhood being viewed in two different ways by the same bit of legislation.
Returning to my hon. Friend’s amendment, the crucial issue to which I will draw hon. Members’ attention is probably the very first section of parental orders in which he has a objection to the word “two people” and wishes to eliminate “two”. He suggests that now that the concept of supportive parenting has been established, it seems timely to ensure that single parents should have the opportunity to apply for a parental order following surrogacy. He suggests that that would make the law consistent with current adoption law, which allows applications from single people and couples. The amendment that he proposed would bring the legislation in line with the current adoption law.
My hon. Friend’s key point is that when the Bill refers to a couple—a same-sex couple, a civil partnership or a married couple—additional phrasing would allow a couple to be defined in the same way as in the legislation, but he adds to that that one person who is not married or a civil partner is also a potential beneficiary of a parental order. He wishes to stress that his point is purely to make the provision consistent with adoption law.
Dawn Primarolo: Surrogacy is a complex area. I shall start by responding to the hon. Gentleman. As far as surrogacy is concerned, the mother who gives birth is the mother. Parental orders, like adoption orders, transfer parenthood after birth. In my view, there is a difference, and I will seek to explain why before asking him not to press the amendments.
Under the 1990 Act, it is possible to make parental orders transferring parenthood only to married couples. The Bill extends the provisions to include civil partners and couples who are not in a civil partnership or married, but who are living as partners in an enduring relationship. A parental order is awarded by a court, subject to the report of the parental order reporter, who visits the parties concerned and prepares a report on whether the provisions of the law are met—for example, whether the woman who carried the child has freely given her unconditional consent.
Surrogacy arrangements are not in themselves enforceable in law, although, when making decisions about whether or not to grant a parental order, the courts will take into account factors such as—as we would expect—where it would be in the best interests of the child to be brought up. The Bill does not extend parental orders to single people. As the hon. Gentleman said, the amendments seek to change that with regard to surrogacy. It is interesting to note that surrogacy has rarely featured in the scrutiny and the debates that have taken place on the review of the 1990 Act and the Bill. Arguments for the change to access to parental orders, which the amendments seek, have surfaced only recently.
Before I answer the specific points, it might be useful to recap by saying that surrogacy is such a sensitive issue, fraught with potential complications such as the surrogate mother being entitled to change her mind and decide to keep her baby, that the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child. There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.
I would say to the hon. Gentleman that there is a difference. His point was that single people are able to adopt and to receive IVF, so why can they not get a parental order over surrogacy? The difference is this: adoption involves a child who already exists and whose parents are not able to keep the child, for whom new parents are sought. That is different, which is why there is no parallel. IVF involves a woman becoming pregnant herself and giving birth to her child—there is not a direct parallel.
Surrogacy, however, involves agreeing to hand over a child even before conception. The Government are still of the view that the magnitude of that means that it is best dealt with by a couple. That is why we have made the arrangements that we have.
I am grateful to the hon. Gentleman for raising the debate, but I say to him that in the Government’s view, discussions about surrogacy should be dealt with elsewhere and not by amending the Bill, because the issues involved are complex and the debate has not been properly considered due to its late emergence as an issue in the Bill.
Dr. Pugh: The Minister has certainly satisfied me with a thoughtful and reflective response; whether she has satisfied my hon. Friend the Member for Oxford, West and Abingdon I somewhat doubt, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.