Dr.
Pugh: The Minister has certainly satisfied me with a
thoughtful and reflective response; whether she has satisfied my hon.
Friend the Member for Oxford, West and Abingdon I somewhat doubt, but I
beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mark
Simmonds: I beg to move amendment No. 176, in
clause 54, page 46, line 16, leave
out subsection
(4). The
Minister was absolutely right to confirm that this is a complex and
difficult area. I was pleased on Tuesday when she reassured the
Committee that she would take away the whole area of surrogacy and, as
was confirmed in the pre-legislative scrutiny Committee, look at the
matter in more detail in the context of the Surrogacy Arrangements Act
1985, which is the foundation from which all current surrogacy
legislation
flows. I
suspect that the hon. Member for Southport agrees with the position of
both the Minister and myself with regard to the amendments that we have
just discussed. This Committee is the wrong place to get into a
detailed discussion about making the surrogacy legislation even more
complex and—to be blunt—confused than it is already. I
agree with the Minister that in this particular context, surrogacy is
better handled by a couple than by a single individual.
The amendment
relates to subsection (4), in which either one or both of the
applicants must be domiciled in the United Kingdom or the Channel
Islands, or in the Isle of Man. I understand from legal advice that the
subsection is inconsistent with section 2 of the British Nationality
Act 1981, which states that a person born outside the UK is a British
citizen if, at the time of his or her birth, his father or mother is a
British citizen, other than by descent. This may be a very difficult
area that the Minister cannot respond to now, but it would be helpful
is she could explain in writing how the Bill and the Act are
reconciled. If they are not reconciled, why is section 2 of the British
Nationality Act not being amended to take account of the fact that both
applicants must be domiciled in the United Kingdom? That appears, at
least on the surface, to be in direct conflict with section 2 of that
Act.
Dawn
Primarolo: Under the 1990 Act it is possible for parental
orders to transfer parenthood only to married couples. We are extending
the provisions to include civil partners and couples who are not civil
partners or married, but who are living together in the enduring family
relationship to which I referred earlier. I am
informed that there are about 50 lawful surrogate arrangements a year
through applications for parental orders. That indicates to me that in
the current system, the conflict with the Nationality Act that the hon.
Gentleman refers to does not appear to have been raised, but as he has
brought up that issue I shall go back and check, and write to him as
quickly as I can. I have a feeling that if there was a conflict, we
would have known about it by now through the interaction of the two
Acts, but it is possible that there is a problem and I will certainly
look at that. I am grateful for his probing
amendment.
Mark
Simmonds: I am pleased and grateful that the Minister has
confirmed that. On that basis, I beg to ask leave to withdraw the
amendment. 9.45
am
Mark
Simmonds: I beg to move amendment No. 177, in
clause 54, page 47, line 13, after
‘wife’, insert ‘who,
in the case of couples who are neither married nor in a civil
partnership, must have been in a relationship for a minimum period of
twelve
months.’. The
amendment would insert a provision whereby couples who fall within the
category in the clause but who are not married or in a civil
partnership must have been in a prior relationship, and would stipulate
a minimum time period for that relationship. Some hon. Members may feel
that it is nit-picking, but I draw their attention to the differences
between various provisions of clause 54. Subsection (2) refers to an
“enduring family relationship”, but subsection (11), the
retrospective provision, makes no reference to it. Is that a drafting
oversight, or is there a specific reason why an enduring family
relationship is not relevant for those trying to obtain retrospective
parental orders under the Bill that they could not obtain under the
1990
Act? Another
point that I wish to make—I hope to catch your eye if we get to
a stand part debate, Mr. Hood—is that greater
clarification seems to be needed of what an enduring family
relationship is. As has been said, there is absolutely no necessity for
a couple, whether same-sex or different-sex, to be in an intimate
relationship to get the benefit of many of the clauses that we have
discussed. I am trying to establish why there is a difference between
subsections of the clause, and particularly why subsection (11) does
not state that an enduring relationship is a fundamental requirement
for getting a parental
order.
Dawn
Primarolo: I can see that you are following what the hon.
Gentleman says as closely as I am, Mr. Hood, as we go
delicately through these important issues. Most of us were listening
intently. [Interruption.] I was. It is very
important, and I want to understand exactly what the hon. Gentleman is
saying, although the tone of my voice made me sound as though I did not
mean
it. Clause
54 relates to how parenthood may be transferred by a court order when a
woman has carried a child as a surrogate on behalf of a couple who
cannot have children themselves. Under the 1990 Act, parental orders
transferring parenthood can only be made for married couples. As I have
mentioned, the Bill extends the provision to include civil partners and
couples who are not married or in a
civil partnership but who live as partners in an enduring family
relationship, which is what the hon. Gentleman’s questions deal
with. When the 1990
Act was introduced, it included a provision allowing married couples
who had had a child through surrogacy before the Act came into force to
apply retrospectively for a parental order. The Bill mirrors that by
including a similar provision for people who were not entitled to apply
for a parental order before because they were not married. They must
apply within six months of clause 54 coming into
force. The
hon. Gentleman’s amendment would add that a couple applying
retrospectively must have been in a relationship for a minimum of 12
months if they are not married or in a civil partnership. Surrogacy can
be a route that couples look to when they are unable to have children
themselves, and I do not believe—I am sure that members of the
Committee do not either—that couples would enter into it
lightly. The process of a couple deciding that they are both happy with
such an arrangement is complex, and they have to find a surrogate who
would be suitable to carry their child. That can take a number of
years, so in most cases, the couple will have gone through the process
together. In addition, when the court is considering the application,
it would have to be satisfied that the couple were in an enduring
family relationship for the parental order to be granted. As part of
that consideration, it is more than likely that the court will consider
the length of the couple’s relationship as well as their
commitment to each other. The Government are prepared to continue with
the arrangement whereby the family division of the High Court would
take the decisions on what made for an enduring relationship that was
suitable and in the best interests of the child for a parental order to
be
made. There
is no reference to this enduring family relationship in subsection
(11), to which the hon. Gentleman referred, because to make an
application to the court under section 54, if the couple are not
married or in a civil partnership, they must be in an enduring family
relationship. Therefore, it is not necessary for it to be in the
legislation in the way that the hon. Gentleman is suggesting.
I am sure
that the hon. Gentleman would agree with the principle that the family
division of the High Court, with its experience, is the best place to
test whether a relationship is an enduring one. That decision is better
made by the courts than by Parliament seeking to put in place arbitrary
time periods or definitions, however well meaning we may want to be.
The ultimate test when issuing the parental order is what is best for
the child.
Mark
Simmonds: Of course I accept that couples would not enter
into a surrogacy arrangement lightly, and the Minister was quite right
to point out that, more often than not, that process can take a number
of years. I also understand her comments about the High Court
considering the length of the relationship. However, I want to put on
record the fact that we are talking about different categories. There
is a difference between people looking forward to what may happen in
the future and enabling a retrospective decision to be made. I
understand the Minister’s explanation. It may also be
interesting for the Committee to know whether the Minister has a view
about how many retrospective cases there might be
under subsection (11) once the Bill has been enacted and about how many
of those will be same-sex couples, or different-sex
couples.
Dawn
Primarolo: The Government will have no idea about that as
it is not possible to measure. However, as I said during the earlier
debate on the British Nationality Act 1981, there were something like
50 applications a year for parental orders involving surrogacy. It is
not a huge number, but parental orders are considered on a case-by-case
basis by the High Court.
Mark
Simmonds: I am grateful to the Minister. The purpose of
the amendment was to ensure that there are no loopholes in the
legislation. I am grateful for her response and I beg to ask leave to
withdraw the amendment.
Amendment,
by leave,
withdrawn. Clause
54 ordered to stand part of the
Bill. Clauses
55 and 56 ordered to stand part of the
Bill.
Schedule
6Amendments
relating to parenthood in cases involving assisted
reproduction Amendment
made: No. 104, in schedule 6, page 72,
line 25, at end
insert— ‘Population
(Statistics) Act 1938
(c. 12) A1 (1) In
the Schedule to the Population (Statistics) Act 1938 (particulars which
may be required), in paragraph 1 (which relates to the registration of
a birth)— (a) in
paragraph (b), after “child,” insert “or as a
parent of the child by virtue of section 42 or 43 of the Human
Fertilisation and Embryology Act 2008,”,
and (b) in paragraph
(c)— (i) in
sub-paragraph (i), after “marriage” insert “or of
their formation of a civil partnership”,
and (ii) at the beginning of
each of sub-paragraphs (ii) and (iii) insert “where the parents
are married,”. (2)
Sub-paragraph (1)(b)(ii) does not extend to
Scotland.’.—[Dawn
Primarolo.] Question
proposed, That the schedule, as amended, be the Sixth schedule to
the Bill.
Robert
Key (Salisbury) (Con): Schedule 6 is an enormous part of
the Bill; it is 27 pages long and, in the other place, it received
substantial scrutiny. Other things have happened since, so I wish to
ask the Minister to clarify one or two points.
On 12
December 2007, Baroness Deech noted in another place that birth
certificates are used for all purposes and that they will be used all
over the increasingly globalised world of proof of this and that. She
argued that birth certificates should therefore focus on the
child’s origins, not the situation of the parents. Baroness
Barker disagreed,
arguing: “A
birth certificate is not a certificate of somebody’s genetic
identity...but...a record of who a child’s social
parents are at any time”.
The title of
schedule 6 is “Amendments relating to parenthood in cases
involving assisted reproduction”. The Minister in the other
place, Baroness Royall,
argued: “The
Bill allows that same-sex couples, whether in a civil partnership or
being treated together, can both be legal parents of a child born
through assisted conception. For these provisions to
be fully legally recognised, the Bill includes amendments to other Acts
to allow birth certificates under UK, Scottish and Northern Irish law
to record that”.—[ Official Report, House of Lords,
12 December 2007; Vol. 697, c. 296-99.] That seemed to be all
very certain. However, on 4 February 2008, on Third Reading, Lord
Jenkin tabled an amendment that would have meant that within four years
of schedule 6 coming into force, the Secretary of State would carry out
a review of the law and practice to decide whether to include donor
conception on birth certificates. Baroness Royall resisted the
amendment, but made a commitment that the Government would carry out a
review. She
said: “I
can make a firm commitment that the Government will carry out a review
of practices in informing donor-conceived children of the fact of their
donor conception and whether there is a need for a change in the law to
best ensure that donor-conceived children are informed of their donor
conception. We will do this within the timeframe suggested by the
amendment tabled by the noble Lord, Lord
Jenkin”.—[Official Report, House of Lords,
4 February 2008; Vol. 698, c.
904.] That
also seemed to make the matter clear, but on 2 June, the
Secretary of State for Work and Pensions and the Secretary of State for
Children, Schools and Families, issued their White Paper, “Joint
birth registration: recording responsibility”, chapter 1,
paragraph 5 of which
states: “This
White Paper focuses on the way the birth registration system applies to
unmarried parents and their children, particularly from the
child’s perspective. It does not cover the birth registration
process for married couples, which works well and where we do not
propose to make any changes. Nor does it cover changes to birth
certificates arising from adoption...or from the changes proposed
in the Human Fertilisation and Embryology Bill to allow a same-sex
couple to be recorded as parents at birth. Further consideration of the
latter will be needed once that Bill has passed through
Parliament”. Will
the Minister explain whether the 27 pages of the Bill that we appear to
be about to nod through will be wiped off the statute book by future
Government considerations when they legislate on the document
“Joint birth registration: recording responsibility”? I
am sure that the Minister has a very fine answer for us and I would be
grateful to hear it before we
proceed.
10
am
Dr.
Pugh: I have the same concerns about the schedule. If we
are honest, few of us have mastered the complete detail of this
horrendously large provision. It amends legislation—indeed, we
have seen this in the past few minutes—that stretches from 1928
to about
1995.
Dr.
Pugh: I stand corrected.
We are
confronted with an adjustment to the law that is of byzantine
complexity, but we are implicitly being asked to believe that there is
a kind of coherence to it, even though we have not established that
there is—we must take that on faith. I am sure that we have
enormous faith in the ability of parliamentary draftsmen to guarantee
the integrity and coherence of the law, but I can hear the alarm bells
ringing.
If anything,
those alarm bells grew louder last night when I inspected a website
devoted to fathers’ interests that explains how fathers can
successfully deal with any threat to those interests. The website put
enormous
stress on the importance of the birth certificate—what it means
and how fathers can use it to get the rights, the access to their
children and the responsibilities that they feel they
deserve. There was a
naïve belief that the birth certificate had clarity, but that
can no longer be established. If there is a dispute in the House of
Lords between people who should know whether the birth certificate is
supposed to indicate genetic origin or social parenting, the ordinary
public will suffer from a certain vagueness.
The Minister
said that an entry on the birth certificate could be purely
symbolic.
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