Clause
50Meaning
of references to parties to a civil
partnership Amendment
made: No. 60, in
clause 50, page 44, line 10, at
end insert— ‘( ) The
reference in section 48(5A)(b) to a civil partnership includes a
reference to a void civil partnership if either or both of the parties
reasonably believed at the time when they registered as civil partners
of each other that the civil partnership was valid; and for this
purpose it is to be presumed, unless the contrary is shown, that one of
them reasonably believed at that time that the civil partnership was
valid.’.—[Dawn
Primarolo.] Clause
50, as amended, ordered to stand part of the Bill.
Clause 51
ordered to stand part of the Bill.
Clause
52Late
election by mother with consent of Registrar
General
Mark
Simmonds: I beg to move amendment No. 175, in
clause 52, page 44, line 34, leave
out subsection (2).
This is a
probing amendment, which is intended to elicit from the Minister the
compelling reason behind the provisions on late registration. First,
will she clarify whether it is common for people to take more than 42
days to register a birth? Secondly, is the defence applicable only
where there has been non-partner IVF treatment, or can it be used by
everyone and in other circumstances? Finally, will the Minister explain
the circumstances in which more than 42 days would be required to
register a birth and why that might be necessary? It would make sense
if there were medical reasons—the mother might, for example, be
in a coma. If there are other circumstances, however, it would be
helpful to establish what they are, and the reasons for
them.
Dawn
Primarolo: The clause extends further the 2003 Act. As the
hon. Gentleman mentioned, the provisions allow for the extension of the
period during which the mother may elect that her deceased partner
should be treated as her child’s father or parent for the
purpose of birth registration, with the consent of the relevant
Registrar General. That is unchanged from the 2003 Act, apart from the
incorporation of references to same-sex couples; the provision operates
in the same way as it would for an application for delay of
registration under the 2003 Act, but is extended to same-sex
couples.
The period of
time could be extended only if the registrar was satisfied that there
were compelling reasons. For the purpose of the clause, in the event
that after giving birth the mother was unable to register the birth
within the statutory period—an example would be that her ill
health prevented it—she could be granted an extension of the
period in which to register. That is based on the fact that it would
clearly be more appropriate for the mother to register the birth than
for someone else to do it on her behalf, in that fewer mistakes would
be likely to be made. That is the basis for the registration
requirement with respect to the mother; the provision maintains that
link.
The registrar
must, however, be satisfied, and the ill health in question must be
something that would absolutely prevent the mother from registering the
birth. I recall reading, and will check the figures, because I do not
have them with me, that thus far, for married couples—obviously
we cannot say what happens with same-sex couples, because they will not
get the relevant right until the Bill receives Royal
Assent—there have been very few late applications. I have a
figure in mind of fewer than 20.
The reason
why we know the figures is that the registrar has referred such matters
upwards, because they are exceptional, and has requested advice. Such
instances are rare; it is expected that they will arise only in
exceptional circumstances. It will not be a matter of inconvenience, or
something like a cold, preventing registration; it will be the same
rules for everyone, in exceptional
circumstances.
Mark
Simmonds: To be absolutely certain, will the Minister
confirm that a compelling reason would not be the mother’s
indecision, for more than 42 days, about who should be named on the
birth
certificate?
Dawn
Primarolo: It is my understanding that that would not be a
compelling reason, but perhaps I may enter a caveat. If we are back to
scenarios that might arise, there might be a complication of reasons,
such as
a combination of extreme distress that one’s partner had died, a
difficult birth and, as a consequence, mental or physical health
matters impinging on the mother’s ability to start her life
again and register her child. However, one must be absolutely precise.
Whether to put the father on the birth certificate might be part of
that situation, but the case that the hon. Gentleman mentioned, of
thinking, “I am not quite sure; I need a few more days to think
about it,” would not be enough. That would not be acceptable. To
my knowledge, that is not how it has operated until now and there is no
reason to believe that it should
change.
Mark
Simmonds: The Minister has clarified the points that I
wanted raised and I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 52
ordered to stand part of the
Bill.
Clause
53Interpretation
of references to father etc.
Dawn
Primarolo: I beg to move amendment No. 61, in
clause 53, page 45, line 16, at
end insert— ‘( ) the
Schedule to the Population (Statistics) Act 1938
(c. 12),’.
The
Chairman: With this it will be convenient to discuss
Government amendments Nos. 104 and
62.
Mark
Simmonds: On a point of order, Mr. Hood.
Perhaps we could have a point of clarification from the Chair. I want
to understand why Government amendment No. 104 is detailed under clause
53, when in fact it is an amendment to schedule
6.
The
Chairman: I thank the hon. Gentleman for his question. It
is a matter of selection. The amendment was deemed relevant to the
debate, and that is why it has been
selected.
Dawn
Primarolo: The Bill sets out the provisions regarding
legal parenthood for same-sex couples following assisted conception.
The provisions allow for the female partner of the woman giving birth,
whether in a civil partnership or not, to be entered as a parent at
birth registration—that is a debate that we have had over a
series of clauses.
Something
else happens at birth registration, which is why there is a
cross-reference with legislation in other clauses. At birth
registration, some statistical information is collected under statute
by the registrar. It relates to the mother’s and father’s
ages and, if they are married, the date of marriage, whether the mother
has been married before and the number of children born to the mother.
The information that the registrar is required to collect is set out in
the Population (Statistics) Act 1938. As a result of the measures in
the Bill, the questions asked when registering the birth require
amendment, as the existing wording would be inappropriate for same-sex
couples.
The amendment
makes the necessary changes to the 1938 Act—we were required to
do it this way round—in order to allow for the collection of
information relating to the age of the same-sex parents and the date of
any civil partnership, where applicable, so as to treat same-sex
parents the same as other parents. This is a requirement beyond the Bill
about the collection of statistics and other things under the 1938 Act
and the registration of birth. That is why I presume, as you said,
Mr. Hood, that all the references that occur in another
clause are put together here for the substantive debate. It is exactly
the same principle. It is about recording the information. Mark
Simmonds: Again, this provision is fairly standard fare
when a Bill will go on to become an Act and amend previous Acts. I
suspect—the Minister may or may not confirm this—that the
reason why amendment No. 61 and subsequent amendments were tabled,
affecting both clause 53 and schedule 6, is that the 1938 Act was
missed off the original list. I am not sure why it is not on the
original list in clause 53(5)(a) to (m). Is the Minister absolutely
confident that the Bill will not impact on any other Acts? I cannot see
anywhere in this clause regulation-making powers to amend other Acts of
Parliament—of 1938, 1927 or 1895—to ensure that the
provisions are comprehensive and that primary legislation is not
required in the future to change Acts that are already in
place.
9.30
am
Dawn
Primarolo: I am as confident as I can be in the
outstanding skills of those who took part in the consultation and the
pre-legislative scrutiny, those who considered the matter in the other
place and the parliamentary draftsmen to ensure that that is the case.
They made the position clear to the best of their abilities. However,
if it is not clear, there is a power in clause 64 to make consequential
amendments. Therefore, there is eventually a loop back. We have
attempted to ensure that there is a failsafe, but I am as confident as
I can be.
Amendment
agreed
to. Clause
53, as amended, ordered to stand part of the
Bill.
Clause
54parental
orders
Dr.
Pugh: I beg to move amendment No. 161, in
clause 54, page 45, line 41, leave
out ‘made by two people (“the
applicants”)’.
The
Chairman: With this it will be convenient to discuss the
following amendments:
No. 162, in
clause 54, page 45, line 42, after
second ‘the’, insert ‘applicant
or’. No.
163, in
clause 54, page 46, line 1, after
‘not’, insert ‘the applicant
or’. No.
164, in
clause 54, page 46, line 4, after
first ‘of’, insert ‘the applicant
or’. No.
165, in
clause 54, page 46, line 7, leave
out subsection (2) and
insert— ‘(2A) An application
for a parental order may by made
by— (a) a couple
or (b) one person
who is not married or a civil
partner. (2B) In this section,
a couple means— (a) a
married couple or (b) civil
partners or
(c) two people (whether of different sexes or the
same sex) who are living together in an enduring family relationship
and who are not within the prohibited degrees of relationship to each
other. (2C) A parental order
may be made on the application of one person who is married or is a
civil partner if the court is
satisfied— (a) that the
person’s spouse or civil partner cannot be
found, (b) the
spouses or civil partners have separated and are living apart and the
separation is likely to be permanent,
or (c) the person’s
spouse or partner is by reason of ill health, whether physical or
mental, incapable of making an application for a parental
order.’. No.
166, in
clause 54, page 46, line 13, after
first ‘the’, insert ‘applicant
or’. No.
167, in
clause 54, page 46, line 17, after
second ‘the’, insert ‘applicant
or’. No.
168, in
clause 54, page 46, line 18, after
‘applicants’, insert ‘(or in
the case of a single person, the
applicant)’. No.
169, in
clause 54, page 46, line 20, after
‘applicants’, insert ‘(or in
the case of a single person, the
applicant)’. No.
170, in
clause 54, page 47, line 10, after
‘by’, insert ‘a single person or
by’.
Dr.
Pugh: I have the challenging job of moving an amendment
tabled by my hon. Friend the Member for Oxford, West and Abingdon,
which I will endeavour to do relatively
briefly.
Dawn
Primarolo: Much more
briefly.
Dr.
Pugh: Indeed. I preface this by saying that my hon. Friend
and I do not see eye to eye on many issues in the Bill, but I am doing
this in a spirit of charity and comradeship and not necessarily because
I see it as anything other than a probing amendment to which the
Minister may want to respond.
Before I
discuss the amendment, I have a brief observation about the whole
clause. Throughout the previous part of the legislation, when we were
trying to tease out the rights of the person who has given non-genetic
material—cytoplasm—to the IVF process, we rigidly defined
motherhood along the lines of child bearing. I have got that clear in
my head. The mother is the person who bears the child and not the one
who produces the genetic material that forms the child. I understand
that. Here, interestingly, we decouple that. We allow it to be
decoupled in a way which is probably quite novel. Always under
surrogacy, there has been some decoupling. Now we have the clear
concept of motherhood being viewed in two different ways by the same
bit of legislation.
Returning to
my hon. Friend’s amendment, the crucial issue to which I will
draw hon. Members’ attention is probably the very first section
of parental orders in which he has a objection to the word “two
people” and wishes to eliminate “two”. He suggests
that now that the concept of supportive parenting has been established,
it seems timely to ensure that single parents should have the
opportunity to apply for a parental order following surrogacy. He
suggests that that would make the law consistent with current adoption
law, which allows applications from single people and couples. The
amendment that he proposed would bring the legislation in line with the
current adoption law. My hon.
Friend’s key point is that when the Bill refers to a
couple—a same-sex couple, a civil partnership or a married
couple—additional phrasing would allow a couple to be defined in
the same way as in the legislation, but he adds to that that one person
who is not married or a civil partner is also a potential beneficiary
of a parental order. He wishes to stress that his point is purely to
make the provision consistent with adoption
law.
Dawn
Primarolo: Surrogacy is a complex area. I shall start by
responding to the hon. Gentleman. As far as surrogacy is concerned, the
mother who gives birth is the mother. Parental orders, like adoption
orders, transfer parenthood after birth. In my view, there is a
difference, and I will seek to explain why before asking him not to
press the
amendments. Under
the 1990 Act, it is possible to make parental orders transferring
parenthood only to married couples. The Bill extends the provisions to
include civil partners and couples who are not in a civil partnership
or married, but who are living as partners in an enduring relationship.
A parental order is awarded by a court, subject to the report of the
parental order reporter, who visits the parties concerned and prepares
a report on whether the provisions of the law are met—for
example, whether the woman who carried the child has freely given her
unconditional
consent. Surrogacy
arrangements are not in themselves enforceable in law, although, when
making decisions about whether or not to grant a
parental order, the courts will take into account factors such
as—as we would expect—where it would be in the best
interests of the child to be brought up. The Bill does not extend
parental orders to single people. As the hon. Gentleman said, the
amendments seek to change that with regard to surrogacy. It is
interesting to note that surrogacy has rarely featured in the scrutiny
and the debates that have taken place on the review of the 1990 Act and
the Bill. Arguments for the change to access to parental orders, which
the amendments seek, have surfaced only
recently. Before
I answer the specific points, it might be useful to recap by saying
that surrogacy is such a sensitive issue, fraught with potential
complications such as the surrogate mother being entitled to change her
mind and decide to keep her baby, that the 1990 Act quite specifically
limits parental orders to married couples where the gametes of at least
one of them are used. That recognises the magnitude of a situation in
which a person becomes pregnant with the express intention of handing
the child over to someone else, and the responsibility that that places
on the people who will receive the child. There is an argument, which
the Government have acknowledged in the Bill, that such a
responsibility is likely to be better handled by a couple than a single
man or
woman. I
would say to the hon. Gentleman that there is a difference. His point
was that single people are able to adopt and to receive IVF, so why can
they not get a parental order over surrogacy? The difference is this:
adoption involves a child who already exists and whose parents are not
able to keep the child, for whom new parents are sought. That is
different, which is why there
is no parallel. IVF involves a woman becoming pregnant herself and
giving birth to her child—there is not a direct parallel.
Surrogacy, however, involves agreeing to hand over a child even before
conception. The Government are still of the view that the magnitude of
that means that it is best dealt with by a couple. That is why we have
made the arrangements that we
have. I
am grateful to the hon. Gentleman for raising the debate, but I say to
him that in the Government’s view, discussions about surrogacy
should be dealt with elsewhere and not by amending the Bill, because
the issues involved are complex and the debate has not been properly
considered due to its late emergence as an issue in the
Bill.
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