Human Fertilisation And Embryology Bill [HL] - continued          House of Lords

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Clause 59: Surrogacy arrangements

240.     Some women cannot carry a child for medical reasons. In a small number of cases, they ask another woman to be a surrogate mother and carry a child for them. Under the Surrogacy Arrangements Act 1985 ("the 1985 Act") surrogacy arrangements are not enforceable in law.

241.     To avoid the commercialisation of surrogacy, the 1985 Act prohibits organisations, or people other than intended parents or surrogate mothers themselves, from undertaking certain activities relating to surrogacy on a commercial basis.

242.     Clause 59 allows bodies that operate on a not-for-profit basis to receive payment for providing some surrogacy services. It does so by exempting them from the prohibition in the current law.

243.     The clause separates out into four categories the activities which are prohibited if done on a commercial basis. Not-for-profit bodies are permitted to receive payment for carrying out activity in two of those categories. The first is initiating negotiations with a view to the making of a surrogacy arrangement. A non-profit making body might charge, for example, for enabling interested parties to meet each other to discuss the possibility of a surrogacy arrangement between them. The second is compiling information about surrogacy. Not-for-profit organisations would, for example, be able to charge for establishing and keeping lists of people willing to be a surrogate mother, or intended parents wishing to have discussions with a potential surrogate mother.

244.     It will remain the case that not-for-profit bodies will not be permitted to receive payment for offering to negotiate a surrogacy arrangement or for taking part in negotiations about a surrogacy arrangement. These activities are not unlawful if there is no charge, however.

245.     The Bill also makes changes in relation to advertising by non-profit making bodies. Currently, under the 1985 Act, it is an offence to publish or distribute an advertisement that someone may be willing to enter into a surrogacy arrangement, or that anyone is looking for a surrogate mother, or that anyone is willing to facilitate or negotiate such an arrangement. The clause provides that this prohibition does not apply to an advertisement placed by, or on behalf of, a non-profit making body, provided that the advertisement only refers to activities which may legally be undertaken on a commercial basis. This would mean that a not for profit body could advertise that it held a list of people seeking surrogate mothers and a list of people willing to be involved in surrogacy, and that it could bring them together for discussion. But it would remain illegal for anyone to advertise that they wanted a surrogate mother or to be a surrogate mother.

Clause 60: Exclusion of embryos from definition of organism in Part 6 of the EPA 1990

246.     Clause 60 amends section 106 of the Environmental Protection Act 1990. Section 106 of the Environmental Protection Act defines "genetically modified organisms" but excludes human embryos as defined by the 1990 Act. Clause 60 amends this Act to also exclude inter-species embryos and human embryos as defined in the Bill (clauses 4(2) and 1(2) respectively).


247.     A separate full Impact Assessment (IA) has been produced to accompany the Bill, comparing the Government's proposals with "do nothing" and de-regulatory options. This is available on the Department of Health website.

248.     The analysis concludes that, in terms of benefits the Bill will update, and future-proof the law to deal with new situations and help maintain the UK's position as a world leader in reproductive technologies.

249.     The overall cost impact of the Bill is minimal as there are not increased costs as a consequence of introduction of the provisions in the Bill.


250.     The Government's view is that the Bill would have no overall effect on public service manpower. As referred to in the section above, there will be financial implications arising in consequence of the proposed changes in relation to legal parenthood (notably in regard to births registration). However, the Government expects any impact on manpower to be negligible.


251.     In relation to licensing decisions to be made by the HFEA, the Bill's provisions are compliant with Article 6 ECHR, which requires that, in the determination of civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent tribunal established by law. The Bill provides for a two stage process of appeal, firstly to a committee of the HFEA itself, followed by a right of appeal to the High Court on a point of law.

252.     The subject matter of the Bill also raises issues in relation to Articles 8, 12 and 14 ECHR, which respectively guarantee rights to protection of private and family life, the right to marry and found a family and freedom from discrimination in the enjoyment of rights under the Convention. Case law of the European Court of Human Rights in Strasbourg has established that, because there is no international consensus with regard to the regulation of IVF treatment or the use of embryos created by such treatment, and because the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast moving medical and scientific developments, states are to be accorded a wide margin of appreciation in this area. The Government's view is that provision made by the Bill falls within this margin of appreciation. In some cases (for example, the extension of legal parenthood to same sex couples and availability of parental orders to unmarried and same sex couples) it is the Government's view that the provision made by the Bill will enhance the existing protection of rights under the Convention.

253.     Case law of the European Court has also established that states have a broad margin of appreciation in determining the point at which life should begin to benefit from the protection guaranteed by Article 2 ECHR. The approach taken by the Bill, that embryos have no right to life which is protected by Article 2, is therefore in compliance with Convention obligations.

254.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. On 8th November 2007, Lord Darzi of Denham, the Parliamentary Under-Secretary of State for Health made the following statement:

In my view the provisions of the Human Fertilisation and Embryology Bill [HL] are compatible with the Convention rights.


255.     Clause 68 contains the relevant commencement power. Clause 64 includes power to make transitional provisions.

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Prepared: 9 November 2007