Human Fertilisation and Embryology Bill [Lords]

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Clause 50

Meaning 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 52

Late 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?
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 53

Interpretation 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 54

parental 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
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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