Human Fertilisation and Embryology Bill [Lords]

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Dr. Harris: I understand the Minister’s point. In the circumstances—which I think are very rare, but could happen—where the surrogate mother does not wish to pass responsibility for the care of the child over to the intended or commissioning parents, giving the commissioning father legal status would give them grounds for custody-type hearings. I doubt that such hearings would be successful, but they could occur and I accept that that is a drawback to the amendment.
In the vast majority of cases, the advantages in assuring quicker parental rights for the commissioning parents—those who look after the child, make decisions for the welfare of that child and should not have to wait as long as they do under current procedures—outweigh those drawbacks. However, I see the Government’s point. A balance must be found, and the Government feel that even in a very small number of cases, a potential legal tug of war between an intended father with parental rights and the surrogate mother would not be edifying. Nothing in this area is edifying when it goes to law, and perhaps the Government recognise that the path of least resistance in respect of creating situations where that might occur, is not to accept the amendments.
As I said, I am disappointed. One would have thought it possible for the law to be changed to ensure that there was no hope of a successful application in such a case. It would mean that, even where the commissioning father had parental rights, he would not be able to exercise them successfully in a legal case in which the surrogate mother was very clear that she did not want to give up the baby. The situation would be the same as it is now, except that in the vast majority of cases, transition would be smoother.
Clearly, those provisions are not in my amendments and the Government have not had a chance to consider that point. I will reflect on what the Government have said and see whether there is a way of dealing with the problem that the Minister has raised. In the meantime, I beg to ask leave of the Committee—including the hon. Member for Salisbury, for whom I have a great deal of respect—to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: Briefly, one of the issues that has come out of the interesting debate that we have had about surrogacy—both in clauses 33 and 35, and on the amendments just withdrawn by the hon. Member for Oxford, West and Abingdon—is that there is concern in legal circles about the current working of the legislation in the Bill, the 1990 Act, and the Surrogacy Arrangements Act 1985. The 1985 Act was nearly 25 years ago, and it may be appropriate both regarding mothers and surrogacy, and in relation to the point made by the hon. Member for Oxford, West and Abingdon about fathers and consent and surrogacy—
Dr. Ian Gibson (Norwich, North) (Lab): Does the hon. Gentleman agree that there is doubt in some of our minds about the commercial interests of the lawyers in this business? Some of their views, as much as they may be pure, may also be pure for the money that is involved. How do we discern who is in it for the money and who is in it for the principle?
Mark Simmonds: The hon. Gentleman makes a reasonable point, although certainly, those lawyers with whom I have discussed the matter and from whom I have received briefing did not give the impression that they were in it for the money. They are in it to clarify exactly what the law and its intentions are and how that interrelates with other Acts of Parliament, so that they can advise their clients officially and properly on the law and where they stand. However, I accept that it is a complex matter. I also accept that we should not go down the route of commercialising surrogacy, but there are clear inconsistencies. It would give the Committee some comfort if the Minister were prepared to say that she would get people in her Department to consider it and, at some appropriate point, to bring it back to the House for discussion.
Dawn Primarolo: I draw the hon. Gentleman’s attention to the fact that the Government gave a commitment to the scrutiny Committee on the Bill that we would review the regulations dealing with surrogacy. It is a delicate and difficult issue, precisely because the Committee raised a number of issues that we were unable to deal with at that point. I believe that the Committee accepted that that was a sensible way forward. That is intended to happen after the Bill has completed its progress and received Royal Assent. It is necessary to connect with other policy areas and to reflect on some of the points made. I am not saying that our minds are made up as to the conclusion. It is worthy of reflection and consultation. I am happy to confirm that, in answer to both hon. Gentlemen’s concerns.
Question put and agreed to.
Clause 35 ordered to stand part of the Bill.
Clause 36 ordered to stand part of the Bill.

Clause 37

The agreed fatherhood conditions
Question proposed, That the clause stand part of the Bill.
Dawn Primarolo: The hon. Gentleman asks about the opt-out, when it can occur and what form is necessary. The consent to fatherhood agreement can be withdrawn only up to the point at which the embryo is transferred into the woman. As elsewhere in the Bill, a lack of consent does not have to be put in writing, but in practice, evidence will be needed that consent has been withdrawn.
Although writing is not specified, it will probably need to be in writing, or at least absolutely clear, that consent has been withdrawn. That is a feature of different parts of the Bill. The hon. Gentleman will remember that we discussed the fact that although it does not actually say that it must be put in writing, that is the best way to ensure that it has been agreed. However, other clear recorded indications that consent has been withdrawn are not disallowed.
Question put and agreed to.
Clause 37 ordered to stand part of the Bill.

Clause 38

Further provision relating to sections 35 and 36
Question proposed, That the clause stand part of the Bill.
5.30 pm
Mark Simmonds: I have one question about clause 38 and how it will operate in practice. If a donor-conceived child is implanted in a woman and both the parents consent but are unmarried, and if during gestation the mother marries a different man, the husband under common law becomes the father. That is right. What happens if the woman who has had the embryo implanted enters a civil partnership? Does the new civil partner become the parent post-embryo transfer?
Dr. John Pugh (Southport) (LD): I was hoping that the Minister could enlighten me along similar lines. I need to clear my head about this. As I understand it, if the father is the genuine, biological father through the normal route, he retains parental rights even if the relationship breaks up after pregnancy. If, on the other hand, IVF is the procedure through which the child is generated, it appears that if the relationship breaks up mid-process, all rights are forfeited. I think that they are forfeited regardless of whether the broken-up-with partner is the donor or not—it does not matter if the donor is someone else or the partner concerned. If the person then remarries, the newly married partner legally assumes the responsibilities—I think that I am correct in saying that.
We seem to have a degree of legal asymmetry, if I can put it like that. It would seem to be that in the case of civil partnerships it is, in a sense, a choice, whether the new civil partner does or does not take on the role and responsibilities of the parent. Does the Minister recognise that legal asymmetry? Is that legal asymmetry just the result of a read-across from civil partnership on one side and marriage law on the other side? Is it simply the consequence of other bits of legislation? Or are those differing responsibilities and rights created by the Bill itself?
Dawn Primarolo: In the circumstances in which the hon. Member for Boston and Skegness described, it would be presumed that the new husband was the father of the child. If it was a civil partnership, the new partner would become the recognised parent, because the relationship was there before the child was born.
Dr. Pugh: I hate to correct the Minister, but the explanatory note says that there is
“no parallel presumption at common law for people who enter a civil partnership.”
Dawn Primarolo: If the marriage is dissolved and the person enters into a civil partnership, there is no common law presumption of legality to the original donor, which would therefore be the legal father. The hon. Gentleman is quite right. That is to do with the point at which it goes back to the previous clause, at which point the consent was active and the embryo was implanted into the woman.
This is much too complicated, Mr. Hood. The hon. Gentlemen should write to me so that I can understand the unusual circumstances that might arise. The hon. Member for Boston and Skegness has put on record a case that I understand, but I am not so clear about the case detailed by the hon. Member for Southport. I will then send them a letter.
Mike Penning (Hemel Hempstead) (Con): Will the Minister give way?
Dawn Primarolo: Just a moment. Please let me deal with one complex point at a time. I will then give to the Committee the legal route that the case would follow and the consequences.
Mike Penning: Surely it would be more logical and helpful to the Committee—some of us did not follow what the hon. Gentleman was saying either—if the Minister could send to the Committee a copy of the transcript when it appears tomorrow, so that we know where we are, rather than having correspondence flying between one Front Bencher and another.
Dawn Primarolo: That is a helpful intervention, and it corrects my position. The hon. Member for Boston and Skegness outlined a scenario in which one legal relationship has broken up and another has been formed. He wishes to see the interaction between the consent given originally and the new circumstances. The point at which consent could be withdrawn has passed because it is during the pregnancy. At that later moment, what is the difference between being a married couple as opposed to a civil partnership, and what rights are transferred to each person in those circumstances? That is the mess that I have managed to get myself into. That is what I understand the question is and that is what I will seek to answer by way of “if this happens, that happens” to the Committee so that it can see where the legal responsibility finally ends up in either relationship. Would that be helpful?
Mark Simmonds: I am grateful to the Minister for her response. I am also pleased that she understands the question that I am asking, and the reason behind it. It would be helpful for the Committee to understand the response to that particular situation. I suspect, and I think that this was the point that the hon. Member for Southport was making, that it is not a simple matter of reading across from marriage to civil partnerships. Disparities will be exposed, and that was the point of asking this particular question. If the Minister can confirm that in writing after she has read Hansard tomorrow, that would be very helpful. That will have a knock-on impact for subsequent clauses that we will be discussing later on.
Dawn Primarolo: Absolutely, and it is about the common law presumption to which we have referred before. We need to focus clearly on that before we enter discussions on some of the other clauses dealing with surrogacy later in the week. I accept that point.
Dr. Harris: I have kept out of this one because I am not clever enough to follow the strange family arrangements that the hon. Member for Boston and Skegness and my hon. Friend the Member for Southport feel so uncomfortable about discussing. This is probably an obvious point, but if there is not a read-across between marriage and civil partnership, does that lead to problems of discrimination? It is my understanding that it was the intention of the law, and policy, to ensure that as far as possible—even if it means converting from common law to statute law to provide that equality—there should be equality between civil partnership and marriage because someone could claim that they were not being given a presumption that other people were and that that was a significant infringement of their rights to equal treatment. There is a presumption in one case but not in the other and civil partners have to strive to overcome that extra barrier. I have raised that as a question for the Minister to consider.
Dawn Primarolo: I will reflect on that point. However, the Government have signed to say that the Bill complies with equality legislation so our lawyers will have checked it.
Question put and agreed to.
Clause 38 ordered to stand part of the Bill.

Clause 39

Use of sperm, or transfer of embryo, after death of man providing sperm
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: Clause 39 is quite important because it relates to the use of the man’s sperm after his death, irrespective of whether the embryo was implanted before or after his death. Subsection (1)(c)(i) refers to the circumstance where a man has consented to the use of his sperm after his death. Will the Minister confirm whether it would be standard practice on the consent form relating to clause 37 for a man to also give consent regarding use of his gametes after his death, or whether that is completely separate? Also, how does it work in relation to married couples, where a consent form is not required because consent is presumed? Can it be proved otherwise? Is specific post-death consent required?
The further point I want to make about clause 39 is that subsection (1)(d), which I do not understand, gives the woman the right to choose whether the man is considered the father of the child. Presumably, if the original father, prior to his death, consented for his genetic material to be used for the treatment for the purposes of creating a child after his death then he is the genetic father. Unless the woman has remarried, and therefore under common law the new husband is the father, why does the woman have the right to be able to choose whether the man is considered the father? He is the father; he is not an anonymous donor. Perhaps the Minister could also explain—I know that the right hon. Member for Coatbridge, Chryston and Bellshill will be interested in this—why there is a difference between England and Scotland on the 42 days and the 21 days requirements.
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