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Family Law Reform (Northern Ireland) Order 1977
237. Paragraph 66 amends Article 13 of the Family Law Reform (Northern Ireland) Order 1977 to ensure that it is clear that a person will not be excluded as the legal parent of a child following DNA tests if they are a parent by virtue of clauses 33 to 47 of the Bill.
Adoption (Northern Ireland) Order 1987
238. Paragraph 67 amends paragraph 3 of Article 15 of the 1987 Order to extend the reference in that provision to cases where by virtue of section 28 of the 1990 Act (disregarding subsections (5A) to (5I) of that section) the child has no parent other than the mother, to include those where there is no other parent of the child by virtue of clauses 34 to 47 of the Bill (disregarding clauses 39, 40 and 46).
Child Support (Northern Ireland) Order 1991
239. Paragraph 68 of Schedule 6 amends Article 27 of the Child Support (Northern Ireland) Order 1991 to include a reference to parenthood acquired via the new provisions for parental orders in clause 54 of the Bill; and also to the other parenthood provisions in Part 2 of the Bill.
Children (Northern Ireland) Order 1995
240. Paragraph 70 amends Article 5 of the Children (Northern Ireland) Order 1995 to provide that a mother and a second female parent who are civil partners shall have parental responsibility for a child born through assisted conception. Where the second female parent of a child is not the civil partner of the child's mother that person shall have parental responsibility for the child if she has acquired it under Article 7 of the 1995 Order.
241. Paragraph 71 amends Article 7 of the Children (Northern Ireland) Order 1995 to provide for the means whereby a second female parent under clause 43 of a child conceived through assisted conception who does not become a civil partner of the child's mother, acquires parental responsibility; if she is registered as a parent of that child, or makes a parental responsibility agreement with the child's mother, or is given parental responsibility by a court.
242. Paragraph 72 replaces a reference in Article 8(4)(g) of the Children (Northern Ireland) Order 1995 to section 30 of the 1990 Act (which is repealed by the Bill) with a reference to clause 54 (parental orders) of the Bill.
243. Paragraph 73 amends Article 12 of the Children (Northern Ireland) Order 1995 and provides for a court which makes a residence order in favour of a second female parent of a child conceived through assisted conception to also give parental responsibility to that parent.
244. Paragraph 74 amends Article 155(3) of the Children (Northern Ireland) Order 1995 to include as legitimate someone conceived through assisted conception at a time when their mother was in a civil partnership, or who was born at a time when their mother was in a civil partnership, or whose mother and second female parent were civil partners at any time between the treatment and the child's birth. The amendment takes account of civil partnerships which are void.
245. Paragraph 76 amends Schedule 1 to the Children (Northern Ireland) Order 1995 so that references to a child's father can be read as including references to a child's second female parent.
246. Paragraph 77 amends paragraph 1 of Schedule 6 to the Children (Northern Ireland) Order 1995, in relation to succession in cases of intestacy where parents are not married to each other, so that references to "father" include a second female parent.
Family Homes and Domestic Violence (Northern Ireland) Order 1998
247. Article 2(3) lists recognised "family proceedings" for the purpose of the Order. Paragraph 78 of Schedule 6 replaces the reference in Article 2(3)(f) of the Order to section 30 of the 1990 Act (which is repealed by the Bill) with a reference to clause 54 (parental orders) of the Bill.
Clause 59: Surrogacy arrangements
248. Some women cannot carry a child for medical reasons. In a small number of cases, they ask another woman to be a surrogate mother and carry a child for them. Under the Surrogacy Arrangements Act 1985 ("the 1985 Act") surrogacy arrangements are not enforceable in law.
249. To avoid the commercialisation of surrogacy, the 1985 Act prohibits organisations, or people other than intended parents or surrogate mothers themselves, from undertaking certain activities relating to surrogacy on a commercial basis.
250. Clause 59 allows bodies that operate on a not-for-profit basis to receive payment for providing some surrogacy services. It does so by exempting them from the prohibition in the current law.
251. The clause separates out into four categories the activities which are prohibited if done on a commercial basis. Not-for-profit bodies are permitted to receive payment for carrying out activity in two of those categories. The first is initiating negotiations with a view to the making of a surrogacy arrangement. A non-profit making body might charge, for example, for enabling interested parties to meet each other to discuss the possibility of a surrogacy arrangement between them. The second is compiling information about surrogacy. Not-for-profit organisations would, for example, be able to charge for establishing and keeping lists of people willing to be a surrogate mother, or intended parents wishing to have discussions with a potential surrogate mother.
252. It will remain the case that not-for-profit bodies will not be permitted to receive payment for offering to negotiate a surrogacy arrangement or for taking part in negotiations about a surrogacy arrangement. These activities are not unlawful if there is no charge, however.
253. The Bill also makes changes in relation to advertising by non-profit making bodies. Currently, under the 1985 Act, it is an offence to publish or distribute an advertisement that someone may be willing to enter into a surrogacy arrangement, or that anyone is looking for a surrogate mother, or that anyone is willing to facilitate or negotiate such an arrangement. The clause provides that this prohibition does not apply to an advertisement placed by, or on behalf of, a non-profit making body, provided that the advertisement only refers to activities which may legally be undertaken on a commercial basis. This would mean that a not-for-profit body could advertise that it held a list of people seeking surrogate mothers and a list of people willing to be involved in surrogacy, and that it could bring them together for discussion. But it will remain illegal for anyone to advertise that they wanted a surrogate mother or to be a surrogate mother.
Clause 60: Exclusion of embryos from definition of organism in Part 6 of the Environmental Protection Act 1990
254. Clause 60 amends section 106 of the Environmental Protection Act 1990. Section 106 of the Environmental Protection Act defines "genetically modified organisms" but excludes human embryos as defined by the 1990 Act. Clause 60 amends this Act to also exclude human admixed embryos and human embryos as defined by the 1990 Act as amended by the Bill (see clauses 4(2) and 1(2) respectively).
255. The overall cost impact of the Bill is minimal as there are not increased costs as a consequence of introduction of the provisions in the Bill. It is expected that the expenditure arising out of the changes to birth registration laws will be approximately £0.8m.
256. The HFEA's expenditure is largely met by fees. For the financial year 2006/07 its income was £6.7m, of this £1.951m was grant in aid allocation and the remainder from fee income. Any increase in the expenditure of the HFEA resulting from the Bill would be met by its fee income.
257. The Government's view is that the Bill would have no overall effect on public service manpower. As referred to above, there will be financial implications arising in consequence of the proposed changes in relation to legal parenthood (notably in regard to births registration). However, the Government expects any impact on manpower to be negligible.
258. A separate full Impact Assessment (IA) has been produced to accompany the Bill, comparing the Government's proposals with "do nothing" and de-regulatory options. This is available on the Department of Health website. Copies are available to Members from the Vote Office.
259. The analysis concludes that, in terms of benefits, the Bill will update and future-proof the law to deal with new situations and help maintain the UK's position as a world leader in reproductive technologies.
260. In relation to licensing decisions to be made by the HFEA, the Bill's provisions are compliant with Article 6 ECHR, which requires that, in the determination of civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent tribunal established by law. The Bill provides for a two stage process of appeal, firstly to a committee of the HFEA itself, followed by a right of appeal to the High Court on a point of law.
261. The subject matter of the Bill also raises issues in relation to Articles 8, 12 and 14 ECHR, which respectively guarantee rights to protection of private and family life, the right to marry and found a family and freedom from discrimination in the enjoyment of rights under the Convention. Case law of the European Court of Human Rights in Strasbourg has established that, because there is no international consensus with regard to the regulation of IVF treatment or the use of embryos created by such treatment, and because the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast moving medical and scientific developments, states are to be accorded a wide margin of appreciation in this area. The Government's view is that provision made by the Bill falls within this margin of appreciation. In some cases (for example, the extension of legal parenthood to same sex couples and availability of parental orders to unmarried and same sex couples) it is the Government's view that the provision made by the Bill will enhance the existing protection of rights under the Convention.
262. Case law of the European Court has also established that states have a broad margin of appreciation in determining the point at which life should begin to benefit from the protection guaranteed by Article 2 ECHR. The approach taken by the Bill, that embryos have no right to life which is protected by Article 2, is therefore in compliance with Convention obligations.
263. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. Alan Johnson, Secretary of State for Health, has made the following statement:
In my view the provisions of the Human Fertilisation and Embryology Bill [HL] are compatible with the Convention rights.
264. Clause 68 provides for the substantive provisions of the Bill to be brought into force by a commencement order made by the Secretary of State. Clause 64 enables such an order to include transitional provisions and savings.
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