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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.