Clause 59

Human Fertilisation and Embryology Bill [Lords] – in a Public Bill Committee at 1:00 pm on 12 June 2008.

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Surrogacy arrangements

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I beg to move amendment No. 178, in clause 59, page 49, line 23, at end insert—

‘(2C) Not for profit bodies can only recoup the costs incurred—

(a) initiating or taking part in negotiations with a view to the making of a surrogacy arrangement, or

(b) compiling any information with a view to its use in making, or negotiating the making of, a surrogacy arrangement.’.

Clause 59 brings us back to surrogacy arrangements, which are not enforceable in law, as the Minister correctly said. The Surrogacy Arrangements Act 1985 prohibits organisations or people, other than intended parents or surrogate mothers, from undertaking certain activities relating to surrogacy on a commercial basis, and that is absolutely correct.

Not-for-profit bodies can charge a fee to initiate negotiations with a view to making surrogacy arrangements and compiling information about surrogacy. However, they are not allowed to receive payments for offering to negotiate a surrogacy arrangement or for taking part in negotiations about them. However, they are allowed to do such things if there is no charge. There is thus potential for cross-subsidisation, with not-for-profit organisations charging more for the activities for which they are able to charge so that they can undertake those activities for which they are not able to charge.

The amendment would ensure that cross-subsidy was prevented, and that charges that were allowed for initiating negotiations or providing information could be commensurate only with the costs incurred in fulfilling those specific roles, and not in generating revenue so that not-for-profit organisations could get involved in other things.

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health)

We have discussed various elements of surrogacy as it relates to the Bill. Clause 59 amends the 1985 Act to clarify the position in law of non-profit making surrogacy organisations. It makes clear that they may charge for their services on a non-profit making basis, and enables them to advertise the services for which they may charge. Such bodies get involved in initiating negotiations with a view to making surrogacy arrangements, and compiling information about surrogacy with a view to its use in making or negotiating a surrogacy arrangement. We recognise that it is difficult for surrogacy organisations to provide a service for a small number of people who seek advice and help with surrogacy in the UK if they are unable to recoup the costs of providing those services.

The amendment would ensure that non-profit surrogacy organisations could recoup the costs incurred only for initiating or taking parting in negotiations with a view to making surrogacy arrangements, or compiling any information with a view to its use in making surrogacy arrangements. I reassure the hon. Gentleman that that is what the Bill does, albeit in a slightly different way.

Clause 59 says that an organisation may charge for certain activities, but only if it is

“not carried on for profit.”

It may charge for: initiating negotiations with a view to making a surrogacy arrangement; enabling interested parties to meet each other to discuss possible surrogacy arrangements; compiling information about surrogacy with a view to its use in making or negotiating a surrogacy arrangement; and establishing and keeping lists of people willing to be surrogates or intended parents.

I can absolutely assure the hon. Gentleman that subsections (2), (4) and (5) insert provisions into the 1985 Act that achieve exactly the intentions behind his amendment. I make it clear that the measure will allow organisations to recoup the costs of providing these services only on a not-for-profit basis. The provisions would enable not-for-profit organisations to charge for putting couples in touch with each other, but not for any more direct intervention in the discussion. I appreciate that that is a fine line—it is exactly the line that the hon. Gentleman wants to ensure is in place—but I assure him and the Committee that the amendments to the 1985 Act are not intended to turn surrogacy into a commercial industry. The arrangements will be kept exactly as they are. The 1985 Act contained firm steps to ban any commercialisation of surrogacy and that principle has not been changed.

I hope that those strong reassurances will satisfy the hon. Gentleman that we have stayed on the correct side of the fine line. I am grateful for the opportunity to spell that out clearly.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health) 1:15, 12 June 2008

I am grateful for the Minister’s constructive response to my probing amendment and for her reassurance that there is to be no movement  away from the principle that surrogacy is prohibited from becoming a commercial activity in this country. I am assured from what she said that the point behind the amendment is covered elsewhere in the clause.

Before I withdraw the amendment, I want to point out that I am still somewhat concerned about something. I do not suggest that non-profit organisations in the surrogacy field would do so, but I am aware that there are other non-profit organisations that are good at increasing their cost base to make sure that they do not make any profit and that they therefore come within the guidelines, but they do so while increasing their revenue streams. We certainly would not want to deter people from participation in surrogacy for financial reasons and financial purposes.

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health)

I agree about the importance of that. I should also have made something clear to the hon. Gentleman about attempts at a cross-subsidy—something that he touched on—by showing that costs were very high for the introduction, on a so-called not-for-profit basis. If there was seen to have been a cross-subsidy in the arrangements, in any way, that would be an offence under the Surrogacy Arrangements Act 1985, and would be dealt with accordingly. I hope that I have reassured the hon. Gentleman about that.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I am grateful for that point, which clarifies the only outstanding point I had to raise about the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I beg to move amendment No. 179, in clause 59, page 49, line 38, leave out subsection (7).

The amendment relates to advertising. At present, there is an outright ban on advertising for surrogacy services. The purpose of the amendment is to extract from the Minister what positive changes she believes will come about as a result of the changes to the 1985 Act. I understand that the clause would not allow profits to be used for advertising services, except with regard to initiating or negotiating an agreement, or compiling information. My understanding is that those concerned would be able to advertise that they had a list of people who were willing to be involved in surrogacy, for example.

My amendment would return the rules on advertising to the existing ones under the 1985 Act and prevent not-for-profits from advertising any particular services. I cannot see—and I have not heard anywhere, prior to our discussion now—any defence of, or justification for, the change. Presumably people who were thinking of using a surrogate would be able to find the information anyway, without advertisements, because they would have been interested in it and thinking about it for several years. It would also be wrong to influence people by advertisements.

Would the offences in relation to contravening the ban on advertising under the clause be the same as for contravening other provisions of the 1985 Act, or would that be something additional to be included in a subsequent Bill?

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health)

The hon. Gentleman’s probing amendment deals with the extent of what can be advertised and whether there is variation from the provisions of the 1985 Act. I shall deal with those specific questions.

As I said, clause 59 amends the Surrogacy Arrangements Act 1985 to clarify the position of non-profit making surrogacy organisations. It allows them to charge for their services on a non-profit basis, and it also enables them to advertise the services for which they may charge. The activities that those bodies carry out involve the following: initiating negotiations with a view to making surrogacy arrangements, thus enabling interested parties to meet each other; and compiling information about surrogates, with a view to using it in making or negotiating surrogate arrangements—to establish and keep lists of willing surrogates and intended parents. Those two activities have to be considered together. The question is how to put the intended surrogate, the woman who is prepared to be a surrogate, and interested parents in touch.

The amendment would remove the provision on advertising. At present, it is unlawful for anyone to advertise that they are or may be willing to enter into a surrogacy arrangement. It is also against the law for people to advertise that they are looking for a surrogate or for intended parents. Those provisions are contained in 1985 Act, and the Bill does not change them. Clause 59(7) amends the 1985 Act to allow non-profit-making bodies to advertise the services for which they may charge—for initiating or taking part in negotiations, or compiling information with a view to making surrogacy arrangements.

I assure the hon. Gentleman that the Bill clarifies what a not-for-profit organisation can do without undertaking commercial surrogacy activities. It can advertise its own services, but it would need to be very clear about the fact that it has to stop at that point. What is still prohibited is individuals advertising the fact that they are looking for a surrogate and the publishing of names. Such specific services are still covered—the Bill has not changed that.

I hope that the Committee recognises that the provisions are not intended to make surrogacy into a commercial business. We recognise that, for some, surrogacy is an option of last resort and that the organisations that provide them with advice and information need to be able at least to publicise the fact that their services may be of assistance. It seems unnecessary to make things more difficult than they already are, but it is necessary to clarify matters and to ensure that the 1985 Act prohibitions stand. I hope that the hon. Gentleman accepts my explanation.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I am grateful to the Minister for her response. It might be that the confusion—if that is the right word—rests on what “advertisement” means. Is it the same as making information available, or does it mean promulgating a service and attracting an audience to a service provision? There is no problem if it means information, but the word “advertisement” has a commercial connotation. The Minister gave a clear explanation of the meaning of proposed new subsection (1A) to section 3 of the 1985 Act means and the difference that applies, but she did not explain why the measure has been drafted or what positive difference it will make. I have not had any experience of, or been contacted by, anybody, either from my constituency or  elsewhere, who has not been able to find out about matching and commissioning people who are prepared to be surrogates, so there is no failure in the structure of the 1985 system. I am therefore not sure that the word “advertisement” adds anything.

The Minister was right to reconfirm that the measure does not amount to a commercialisation of surrogacy, and I agree with her. However, what difference would the measure make to those who were trying to access surrogacy services by allowing those who provide the service to advertise over and above the current provision of services? The measure does not seem to make any difference, so I do not see the point of it.

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health)

My answer will take longer than a normal intervention. The Government are aware that a number of agreements—the number is small rather than vast—are reached each year, as I mentioned in my contributions to debates on other surrogacy measures, which is linked to the point that the hon. Gentleman made on what can be advertised.

However, the point is that bodies can make a charge, on a non-profit making basis, for initiating negotiations with a view to making a surrogacy agreement and, as I said, enabling interested parties to meet each other. Some organisations would find it difficult to present such services—they are not commercial, which is to say that they are not for profit—under the 1985 Act. The Government are clarifying the difference between what we consider to be commercial and not for profit. We are not going to see adverts on television because we are talking about a specialised area and small group of people. The advertising can draw the public’s attention, but charging people who want to initiate negotiations is not for profit.

I accept what the hon. Gentleman said. He said that those parents who have taken the big step, for whom surrogacy is the last resort, are more than likely to be aware of everything. It could be considered churlish to make things more difficult just because we can when we are limiting what is provided by the 1985 Act. This is about the difference between what organisations are allowed to provide on a non-profit making basis and thus charge for, which is basically the introduction, and the commercial aspect. Individuals are not allowed to advertise and we do not allow the publication of a list of individuals, or for people to say, “I’m an individual looking for a surrogate”. That type of advertising is not permitted. That is the fine line that we seek to draw. That is a slightly elongated attempt to pick up the points, but I hope that I have clarified the situation.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health) 1:30, 12 June 2008

I am grateful to the Minister for that further clarification. She is absolutely right to highlight the difference between non-profit-making and charging elements. However, I ask that she and the relevant civil servants monitor the situation carefully, because there is concern that it might be possible to stretch the envelope in ways that were never intended for the advertising and marketing of services. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 ordered to stand part of the Bill.