Clause 35
Human Fertilisation and Embryology Bill [Lords]
5:00 pm

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

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’.

Jimmy Hood (Lanark and Hamilton East, Labour)

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’.

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

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, Conservative)

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.

Jimmy Hood (Lanark and Hamilton East, Labour)

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.

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

I was not quoting from any document—[Interruption.] No, I said that I had received a briefing. The Minister receives briefings from officials.

Jimmy Hood (Lanark and Hamilton East, Labour)

Order. I have given my response to the point of order. I invite the hon. Gentleman to carry on discussing his amendments.

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

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

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?

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

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

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.

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.

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

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.

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

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—

Ian Gibson (Norwich North, Labour)

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

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

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.