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. 5
pm 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
35Woman
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: “If...at
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.
Dawn
Primarolo: The subject of surrogacy is complex and fraught
with difficult ethical considerations. The Human Fertilisation and
Embryology Act 1990 and the Bill recognise that by providing elements
of certainty,
although it is not possible to provide complete certainty, because of
the complexity. One of those elements is that if the surrogate mother
is married, her husband is treated as the father of the child unless it
is shown that he did not consent to the treatment—a point that
has been made. That provision reflects the common law presumption that
a child born to a woman in a marriage is also the child of her husband.
I shall return to that principle in a moment because it is a very
important principle that the legislation is designed not to breach. The
Bill extends the provision to civil partners, so that the
mother’s civil partner is the parent of a child born through
assisted conception unless it is shown that she did not consent to the
treatment. That reflects the fact that the civil partnership is given
the same status as marriage, in recognition of the parental
responsibilities. 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.
5.15
pm 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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