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Human Fertilisation and Embryology Bill [Lords]
4:45 pm

Mark Simmonds (Shadow Minister, Health; Boston and Skegness, Conservative)

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.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)

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.

Jimmy Hood (Lanark and Hamilton East, Labour)

Order. The hon. Member for Boston and Skegness was not out of order.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)

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 (Shadow Minister, Health; Boston and Skegness, Conservative)

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.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)

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 (Minister of State (Public Health), Department of Health; Bristol South, Labour)

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.

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.

Jimmy Hood (Lanark and Hamilton East, Labour)

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.