Human Fertilisation and Embryology Bill [Lords]

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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Amendment, by leave, withdrawn.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.
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 6

Amendments 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.
Robert Key: From 1836.
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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