Human Fertilisation and Embryology Bill [Lords]

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Dr. Harris: Surrogacy is a big issue. I am in some difficulty as I have amendments tabled to clauses 35 and 54, which touch on surrogacy issues, albeit not necessarily those mentioned by the hon. Gentleman. I am not suggesting that you should consider him out of order, Mr. Hood, but we have to be cautious because we are going to deal with some of these issues later.
The Chairman: Order. The hon. Member for Boston and Skegness was not out of order.
Dr. Harris: That was the point that I was making. I was not rising to make a point of order, Mr. Hood. If I had wanted to say that the hon. Gentleman was out of order, I would have said that, but I did not think that he was. However, I am concerned about how far we can go in the discussion and I am seeking your advice, Mr. Hood, as there are amendments to clause 35 that deal with UK citizens seeking surrogacy arrangements abroad.
Mark Simmonds: My understanding is that the amendments to clause 35 relate to the husband of the surrogate being considered the father. The points that I made under clause 33 related specifically to the meaning of “mother” as detailed in the provisions of clause 33.
Dr. Harris: That is helpful. I wanted to raise another issue about surrogacy that I hope that the Minister will reflect on. It builds on the point made by the hon. Member for Boston and Skegness. The law in this country provides for surrogacy, but not for equality for surrogate parents in respect of maternity leave and employment protection. We cannot go too far down that path during debate on a health Bill, but as the Bill makes provision for surrogates, and as I know the Government are keen to ensure that there is no discrimination in legislation and that the welfare of the child is paramount, have the Government given any thought to whether it is appropriate to ensure maternity leave rights and employment protection for surrogate parents?
Part of the problem is that, as we have discussed, until a parental order is obtained, one is not the legal parent. By the time one is entitled to take some of the leave available, it is rather after the fact, as one wants to take such leave as early as possible. As I am attempting to stay in order, what I am asking is whether the Government are sure that nothing more can be done through conversations with other Departments, particularly the Department for Business, Enterprise and Regulatory Reform, to ensure a system that supports children and allows the creation of new families with children who are loved and wanted. The mothers and fathers involved in such arrangements—they are few—should have the opportunity to benefit from the arrangements available for other parents, arrangements that the Government introduced. I certainly support those arrangements and I think that there is full support for them across the country and the House.
I had better leave my remarks there. I was just probing that particular matter.
Dawn Primarolo: Mr. Hood, I am sure that you will stop me if I move beyond the remit of the clause. Clause 33 deals with the meaning of “mother”, replacing section 27 of the Human Fertilisation and Embryology Act 1990. It provides that a woman who carries a child as a result of assisted conception, wherever and however it took place, is the mother of the child. It also provides that if the child is then adopted, the woman who carried the child will no longer be the mother.
The hon. Gentlemen have touched on the specific considerations around surrogacy, and we will do so again at various points in the next few clauses. The hon. Member for Boston and Skegness asked me about our considerations—what we reflected on and what our conclusions were. I had intended during debate on amendments Nos. 171 and 172 to say what our view is and why we have taken it with regard to who is considered to be the father of the child and situations where the couple is married. It may be more appropriate to respond to his point then, when I will be happy to pick up any further points.
Surrogacy is an option of last resort for couples who cannot have a child by other means. The Bill extends the categories of couples who can apply for a parental order. The new provisions also make changes in terms of assisting organisations, but there is no international agreement governing or setting minimum standards for surrogacy arrangements. In the United Kingdom, the law applies to anyone who is resident, whether or not they are British citizens and whether or not their residency here is permanent.
Complicated arrangements are necessary, especially when surrogacy arrangements have been made outside the UK. Immigration law covers that. In exceptional circumstances, that goes to the heart of recognising the woman who carries the child as the mother and, if she is married, her legal husband as the father, unless he did not give consent, on the basis that a mother in surrogacy could decide not to give up the child. How immigration and employment law, the birth certificate, parental responsibilities and adoption rights interact is incredibly complex, but we attempt to cover such interaction through various clauses in the Bill.
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Perhaps with a little latitude I could respond to the question that the hon. Member for Oxford, West and Abingdon asked about the rationales for maternity and paternity leave and what the Department for Business, Enterprise and Regulatory Reform could do. Maternity leave and pay was introduced primarily to protect the health and safety of the mother following the birth of the child and to help women to take time off in the weeks around birth. It is clearly predicated on such events—women are required by law to take a period of maternity leave after the birth of the child.
Rights to adoption leave and pay enable the adoptive parent to take leave from work. The idea that we would duplicate and give different parents access to the same leave, payments and rights when transferring legal rights is complicated. It is not wholly appropriate to discuss it under the Bill, and I feel that I would be straying if I did so. I merely wish to indicate to members of the Committee that, as we discuss these clauses, but not now, certain things will need to be said about the legal recognition of surrogacy, its interaction with international law, and the rights of the mother who carried the child.
The Government do not consider that there is unlawful discrimination against single people in such situations, which was mentioned, because being single has not been recognised as a protected status for the purpose of the European convention on human rights. I shall say more about that when we consider other amendments to clauses that we have not yet discussed. However, the measure is not about the quality of parenting or the ability of a single parent to be an excellent parent, but the complex interaction of the courts’ decisions on surrogacy and the current law in this country.
I have been careful to indicate sensitivity to the Committee, without going beyond the scope of the clause. I feel that the hon. Gentlemen will want to comment when we discuss subsequent clauses and amendments, because their principal points will come up in more detail. I hope that that is in order and helpful to the Committee.
The Chairman: The Committee managed its way through that stand part debate with a little flexibility, and still managed to keep in order. That allowed hon. Members to make one or two important points.
Question put and agreed to.
Clause 33 ordered to stand part of the Bill.
Clause 34 ordered to stand part of the Bill.

Clause 35

Woman married at time of treatment
Dr. Harris: 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’.
The Chairman: 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’.
Dr. Harris: 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) (Con): 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.
The Chairman: 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.
Dr. Harris: I was not quoting from any document—[Interruption.] No, I said that I had received a briefing. The Minister receives briefings from officials.
The Chairman: Order. I have given my response to the point of order. I invite the hon. Gentleman to carry on discussing his amendments.
Dr. Harris: 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: 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?
Dr. Harris: Clause 35, which relates to a woman married at the time of treatment, states:
“ 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.
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.
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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.
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