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)
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.