Clause 54
Human Fertilisation and Embryology Bill [Lords]
9:30 am
Jimmy Hood (Lanark and Hamilton East, Labour)
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
(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’.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
Much more briefly.
John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat)
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 (Minister of State (Public Health), Department of Health; Bristol South, Labour)
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.
Mark Simmonds (Shadow Minister, Health; Boston and Skegness, Conservative)
I beg to move amendment No. 176, in clause 54, page 46, line 16, leave out subsection (4).
The Minister was absolutely right to confirm that this is a complex and difficult area. I was pleased on Tuesday when she reassured the Committee that she would take away the whole area of surrogacy and, as was confirmed in the pre-legislative scrutiny Committee, look at the matter in more detail in the context of the Surrogacy Arrangements Act 1985, which is the foundation from which all current surrogacy legislation flows.
I suspect that the hon. Member for Southport agrees with the position of both the Minister and myself with regard to the amendments that we have just discussed. This Committee is the wrong place to get into a detailed discussion about making the surrogacy legislation even more complex and—to be blunt—confused than it is already. I agree with the Minister that in this particular context, surrogacy is better handled by a couple than by a single individual.
The amendment relates to subsection (4), in which either one or both of the applicants must be domiciled in the United Kingdom or the Channel Islands, or in the Isle of Man. I understand from legal advice that the subsection is inconsistent with section 2 of the British Nationality Act 1981, which states that a person born outside the UK is a British citizen if, at the time of his or her birth, his father or mother is a British citizen, other than by descent. This may be a very difficult area that the Minister cannot respond to now, but it would be helpful is she could explain in writing how the Bill and the Act are reconciled. If they are not reconciled, why is section 2 of the British Nationality Act not being amended to take account of the fact that both applicants must be domiciled in the United Kingdom? That appears, at least on the surface, to be in direct conflict with section 2 of that Act.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
Under the 1990 Act it is possible for parental orders to transfer parenthood only to married couples. We are extending the provisions to include civil partners and couples who are not civil partners or married, but who are living together in the enduring family relationship to which I referred earlier. I am informed that there are about 50 lawful surrogate arrangements a year through applications for parental orders. That indicates to me that in the current system, the conflict with the Nationality Act that the hon. Gentleman refers to does not appear to have been raised, but as he has brought up that issue I shall go back and check, and write to him as quickly as I can. I have a feeling that if there was a conflict, we would have known about it by now through the interaction of the two Acts, but it is possible that there is a problem and I will certainly look at that. I am grateful for his probing amendment.
Mark Simmonds (Shadow Minister, Health; Boston and Skegness, Conservative)
I am pleased and grateful that the Minister has confirmed that. On that basis, I beg to ask leave to withdraw the amendment.
Mark Simmonds (Shadow Minister, Health; Boston and Skegness, Conservative)
I beg to move amendment No. 177, in clause 54, page 47, line 13, after ‘wife’, insert
‘who, in the case of couples who are neither married nor in a civil partnership, must have been in a relationship for a minimum period of twelve months.’.
The amendment would insert a provision whereby couples who fall within the category in the clause but who are not married or in a civil partnership must have been in a prior relationship, and would stipulate a minimum time period for that relationship. Some hon. Members may feel that it is nit-picking, but I draw their attention to the differences between various provisions of clause 54. Subsection (2) refers to an “enduring family relationship”, but subsection (11), the retrospective provision, makes no reference to it. Is that a drafting oversight, or is there a specific reason why an enduring family relationship is not relevant for those trying to obtain retrospective parental orders under the Bill that they could not obtain under the 1990 Act?
Another point that I wish to make—I hope to catch your eye if we get to a stand part debate, Mr. Hood—is that greater clarification seems to be needed of what an enduring family relationship is. As has been said, there is absolutely no necessity for a couple, whether same-sex or different-sex, to be in an intimate relationship to get the benefit of many of the clauses that we have discussed. I am trying to establish why there is a difference between subsections of the clause, and particularly why subsection (11) does not state that an enduring relationship is a fundamental requirement for getting a parental order.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
I can see that you are following what the hon. Gentleman says as closely as I am, Mr. Hood, as we go delicately through these important issues. Most of us were listening intently. [Interruption.] I was. It is very important, and I want to understand exactly what the hon. Gentleman is saying, although the tone of my voice made me sound as though I did not mean it.
Clause 54 relates to how parenthood may be transferred by a court order when a woman has carried a child as a surrogate on behalf of a couple who cannot have children themselves. Under the 1990 Act, parental orders transferring parenthood can only be made for married couples. As I have mentioned, the Bill extends the provision to include civil partners and couples who are not married or in a civil partnership but who live as partners in an enduring family relationship, which is what the hon. Gentleman’s questions deal with.
When the 1990 Act was introduced, it included a provision allowing married couples who had had a child through surrogacy before the Act came into force to apply retrospectively for a parental order. The Bill mirrors that by including a similar provision for people who were not entitled to apply for a parental order before because they were not married. They must apply within six months of clause 54 coming into force.
The hon. Gentleman’s amendment would add that a couple applying retrospectively must have been in a relationship for a minimum of 12 months if they are not married or in a civil partnership. Surrogacy can be a route that couples look to when they are unable to have children themselves, and I do not believe—I am sure that members of the Committee do not either—that couples would enter into it lightly. The process of a couple deciding that they are both happy with such an arrangement is complex, and they have to find a surrogate who would be suitable to carry their child. That can take a number of years, so in most cases, the couple will have gone through the process together. In addition, when the court is considering the application, it would have to be satisfied that the couple were in an enduring family relationship for the parental order to be granted. As part of that consideration, it is more than likely that the court will consider the length of the couple’s relationship as well as their commitment to each other. The Government are prepared to continue with the arrangement whereby the family division of the High Court would take the decisions on what made for an enduring relationship that was suitable and in the best interests of the child for a parental order to be made.
There is no reference to this enduring family relationship in subsection (11), to which the hon. Gentleman referred, because to make an application to the court under section 54, if the couple are not married or in a civil partnership, they must be in an enduring family relationship. Therefore, it is not necessary for it to be in the legislation in the way that the hon. Gentleman is suggesting.
I am sure that the hon. Gentleman would agree with the principle that the family division of the High Court, with its experience, is the best place to test whether a relationship is an enduring one. That decision is better made by the courts than by Parliament seeking to put in place arbitrary time periods or definitions, however well meaning we may want to be. The ultimate test when issuing the parental order is what is best for the child.
Mark Simmonds (Shadow Minister, Health; Boston and Skegness, Conservative)
Of course I accept that couples would not enter into a surrogacy arrangement lightly, and the Minister was quite right to point out that, more often than not, that process can take a number of years. I also understand her comments about the High Court considering the length of the relationship. However, I want to put on record the fact that we are talking about different categories. There is a difference between people looking forward to what may happen in the future and enabling a retrospective decision to be made. I understand the Minister’s explanation. It may also be interesting for the Committee to know whether the Minister has a view about how many retrospective cases there might be under subsection (11) once the Bill has been enacted and about how many of those will be same-sex couples, or different-sex couples.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
The Government will have no idea about that as it is not possible to measure. However, as I said during the earlier debate on the British Nationality Act 1981, there were something like 50 applications a year for parental orders involving surrogacy. It is not a huge number, but parental orders are considered on a case-by-case basis by the High Court.
Mark Simmonds (Shadow Minister, Health; Boston and Skegness, Conservative)
I am grateful to the Minister. The purpose of the amendment was to ensure that there are no loopholes in the legislation. I am grateful for her response and I beg to ask leave to withdraw the amendment.