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by leave, withdrawn.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clauses 33 and 35, and on the amendments just withdrawn by the hon.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
37The
agreed fatherhood
conditions Question
proposed, That the clause stand part of the
Bill.
Mark
Simmonds: The clause deals with the conditions that must
be met for a man to be treated as the father of a child, irrespective
of whether his sperm was used. The man does not have to give written
consent under the
conditions if he is married to the woman being provided with the
treatment, as the agreed fatherhood conditions apply only if a couple
are unmarried. If a couple are married, the husband does not need to
give written consent, yet in clause 35, a married man must show that he
did not consent. Must the fact that he did not consent be put in
writing, or can it be verbal? If there is no procedure requiring
married couples to give written consent, how can it be confirmed that a
father did not consent to the
treatment?
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
38Further
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
39Use
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.
| 
