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There are only two solutions for the commissioning parents under current law: a private fostering arrangement or a parental order. Private fostering entails local authority supervision, with its attendant inquiries and monitoring. To qualify for a parental order, an applicant has to meet a number of clear conditions, one of which is that the application has to be made within six months of the birth. If this condition is not met, the commissioning parents would have only one other option in order to acquire the legal status of parents, which is to apply for an adoption order. However, that process takes at least three years and the outcome is by

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no means guaranteed. Let us remember that this is a situation where the man who has commissioned the child is also that child’s genetic father, yet in law they are treated as being unrelated.

The anomaly, however, is that if the surrogate mother is not married, most of these problems do not arise. I am talking here about a surrogate mother who is overseas. In such a case, the genetic father is the natural putative father of the child and the child is treated as his illegitimate child. Thus the father is able to apply for parental responsibility, which the carrying mother can also grant by agreement; he can also apply, as of right, for Section 8 Children Act orders. He does not have to notify the local authority if the child is living with him; he can apply to adopt after the child has been living with him for 10 weeks, or for six months if adopting with a partner; and the child is entitled to British citizenship, succession rights and the rights that follow from being his child for the purpose of prohibited degrees of relationships. None of those things applies if the surrogate mother is married.

A big question arises as to whether our law and this Bill are human rights compliant. In my opinion—I say this having received advice from a QC in this field—there are strong arguments that, in its effect in surrogacy cases, Section 28(2) of the 1990 Act and, therefore, Clause 35 of this Bill are in breach of the rights to private and family life, particularly in respect of immigration and in relation to both child and genetic parent, and probably to the genetic parent’s spouse or partner as well. There may be cases where a parental order is not available—for instance, where consent is withdrawn—in which case the lack of ability to apply for, or be granted, parental responsibility will create a serious problem, particularly in the context of the period that must elapse before an adoption application can be commenced. The fact that the child born to the unmarried surrogate has a wholly different status and the father of such a child has radically different rights and responsibilities seems to me to be anomalous.

I have covered only in outline the various ramifications of this issue and, rather than detaining the House further, I simply ask the Minister to give an undertaking to take these matters away and examine them carefully prior to Third Reading. They need to be properly grappled with. I beg to move.

Lord Elton: My Lords, I congratulate my noble friend on having sussed this out.

Baroness Royall of Blaisdon: My Lords, I, too, congratulate the noble Earl on his probing of the law on surrogacy. It is a complex area, even if no international element is involved. We advise couples who are contemplating surrogacy to take expert legal advice at an early stage, certainly before deciding whether to proceed. That would be the case whether the surrogacy were to be in the UK or elsewhere. A range of complex issues affects the law on surrogacy—whose gametes will be used, whether the surrogate is married, the country where the surrogacy takes place, the laws in that country in relation to parenthood following surrogacy and the recognition of those laws in this country. It is

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not an arrangement that should be undertaken lightly. In the same way, I do not want to attempt to answer the points raised by the noble Earl without reflecting carefully on them and getting proper guidance.

However, I will briefly describe the clauses to which the noble Earl refers. The purpose of Clause 35(2) is to make it clear that, where a married couple is treated with donor gametes, whether the treatment is in the United Kingdom or abroad, the husband of the woman who is treated is the father of the child. That applies unless it is shown that he did not consent to that treatment. This simple provision recognises the parenthood of married men when their wives have babies and donated gametes are used to conceive the child. For the provision to have effect, the conception must involve assisted conception. Clause 35 will not apply if the conception is as a result of sexual intercourse. The provision is there to make it clear that, if a married woman conceives a child through the use of donor gametes in whatever circumstances, her husband is the father as long as he consented to the use of the donor gametes.

Clause 54 is about the conditions that must apply before a parental order, which is a fast-track adoption, can be given by a court. Parental orders are given in very specific circumstances to transfer the parenthood of a child to the commissioning couple following a surrogacy arrangement. They are a form of light-touch adoption, in terms of the processes that will be applied, because one of the commissioning parents must be a genetic parent of the child. The social services are alerted to cases of surrogacy but, for the parental order to be given, the lengthy process of determining the suitability of various couples for the adoption of the child will not be engaged because one or both of the new parents will be a biological parent.

The Bill proposes that the eligibility for parental orders be extended so that civil partners and unmarried couples may apply rather than just married couples. For the order to be given, either or both of the applicants must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man. The amendment seeks to remove this provision. The noble Earl raises important potential problems relating to children born of surrogate mothers who are married and living overseas. He cited what could be strong arguments that Clause 35 is in breach of human rights law. I am certainly not in a position to respond today, but I will take the issue away and come back at Third Reading. Therefore, I ask the noble Earl to withdraw the amendment at this stage.

Earl Howe: My Lords, I am grateful to the Minister for her reply. I can ask for no more than what she has kindly offered to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5 pm

Clause 46 [Embryo transferred after death of civil partner or intended female parent]:

Lord Mackay of Clashfern moved Amendment No. 142:

Clause 46, leave out Clause 46

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The noble and learned Lord said: My Lords, the noble Baroness, Lady Deech, tabled the amendment, but unfortunately she is not able to be with us this evening and so invited me to take her place in dealing with the matter. Your Lordships will be relieved to know that this has nothing whatever to do with any kind of definition; it is a simpler issue.

One of the situations covered by Clause 46 is that,

“the child has been carried by W as the result of placing in her of an embryo”.

That is the first point, which relates to what I assume is not the natural way of doing what was intended here, although it might be enough to cover that. Secondly, it must be that,

“the embryo was created at a time when W was a party to a civil partnership”.

So, at the time of the creation of the embryo there has to have been a civil partnership. Then, it must be that,

“the other party to the civil partnership died before the placing of the embryo in the woman”.

There was, then, some interval of time between the creation of the embryo and the placing of it in the woman W—“W” seems to be the initial that one uses for a woman in this provision. That interval might be quite long, depending on the circumstances. Then it must be that,

“the other party to the civil partnership consented in writing (and did not withdraw the consent) ... to the placing of the embryo in W after the death of the other party”.

I assume that the consent was given before her death, but she consented to the placing of the embryo in W after her death. She had also to agree,

“to being treated for the purpose mentioned in subsection (4) as the parent of any resulting child”.

The purpose mentioned in Clause 46(4) is to be registered as a parent, and nothing more than that.

You start off with a situation in which this person who was a party to a civil partnership has agreed to these two particular conditions. Now what happens to the child? Possibly more than one child is born because it is at the embryo stage. It then must be that W—the lady carrying the child or children—has,

“elected in writing not later than the end of the period of 42 days from the day on which the child was born for the other”,

party to the civil partnership,

“to be treated for the purpose mentioned in subsection (4) as the parent of the child”.

This person, who may have been dead for quite a long time, is to be treated as the parent of the child for the purpose of registration if the woman who has carried the child decides that that should be so—and not otherwise. If all this happens, the provision is that the child will be registered with this dead woman as a parent.

What is the purpose of this provision? It seems an elaborate provision to secure a registration. The answer is to be found in Clause 48(4). It says there that, where Clause 46(1) or (2) apply—I have taken only the example of Clause 46(1), but the considerations are similar for Clause 46(2)—the deceased woman,

“is to be treated in law as a parent of the child for the purpose mentioned in section 46(4)”,

that is, for registration. Yet, she,

“is to be treated in law as not being a parent of the child for any other purpose”.

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The only purpose for which all this elaborate procedure is designed is to secure that the dead woman is named on the child’s birth certificate. I cannot understand the purpose of that; you cannot rely on it for any other purpose, according to the provision that I have just read. I am interested to know what good it does to put on to the register of births, marriages and deaths the name of a deceased person who is not to be treated as the parent of the child for any other purpose than to appear in the registration. That seems to require some explanation.

My other point is that the Government have been reluctant, despite some people wishing it, to require donor conceptions to be marked on the register. Yet this will inevitably mean that the child in question is marked on the register as donor conceived because there is no way in which two women—one the mother and the other a parent—could have produced the child in any other way given the present status of science. That is the present situation, whatever the future may hold. Therefore, this measure would inevitably result in putting on the register the fact that this child is donor conceived when the Government have declined to do that in respect of other donor-conceived children.

Moreover, this type of provision is apt to be blamed on scientists. Sometimes people say that scientists, including doctors, have developed all these procedures. But this is nothing to do with that science; some other motivation is behind this measure. I am not sure exactly what it is; perhaps we shall hear. However, one of the results is that the child in respect of whom this provision applies will be strongly differentiated from the vast majority of other children. Therefore, the equality agenda under which all this appears to have taken place seems to apply only to adults; the children will be subject to severe differentiation in the application of this doctrine. I await with interest the response to the suggestion that this clause be deleted. I beg to move.

Lord Darzi of Denham: My Lords, I wish to address the three amendments tabled by the noble Baroness, Lady Deech, which were eloquently explained on her behalf by the noble and learned Lord, Lord Mackay.

I should make it clear what the Bill does in respect of same-sex couples and birth certificates. At present, we have the invidious situation where the female partner of a woman who gives birth following assisted reproduction treatment is not recognised as a parent of the child. I say it is invidious not only because it causes a disparity between same-sex couples and heterosexual couples, but because this means that the child would have a “legal” relationship with only one parent and not two. The Civil Partnership Act 2004 allowed for the acquisition of parental responsibility, but it did not provide for joint legal parenthood following assisted conception treatment. The Bill now addresses this.

The Bill allows female couples, whether they are in a civil partnership or are being “treated together”, to both be legal parents of a child born through assisted conception. The Bill includes amendments to other

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Acts that allow the second female parent to be registered on the child’s birth certificate under English and Welsh, Scottish, and Northern Irish law. The amendments of the noble Baroness, Lady Deech, would take these provisions out of the Bill.

A number of consequences flow from the information recorded in the birth register. Birth certificates are used as prime evidence of status as well as of rights to benefits, passports, inheritance, and parentage. For example, where parents are not married to each other, the father will acquire parental responsibility by registering the child jointly with the child’s mother under the Children Act 1989, or, for Scotland, the Children (Scotland) Act 1995, as amended by the Family Law (Scotland) Act 2006, or in Northern Ireland, the Children (Northern Ireland) Order 1995. In addition, a child’s birth is required to be reregistered under the Legitimacy Act 1976 when the parents marry after the birth, thus providing evidence of legitimation. A further example is that a father named on a birth certificate is evidence for liability for child support payments.

Birth registration needs to be updated with our changing times. When the 1990 Act came into force it allowed fathers to be recorded on a child’s birth certificate, following assisted conception treatment, where they were not in fact the genetic father of the child because donated sperm was used. The 1990 Act specifically excludes the sperm donor from being the father of any child born through assisted conception as a result of his donation. Therefore, where donated sperm or eggs are used, the birth certificate does not record the donor as a parent, and therefore is no longer a record of genetic parentage.

Currently, where a single woman receives infertility treatment at a licensed centre, only one name would go on the child’s birth certificate. I am of the view that where there would not be a father, but there would be a same-sex partner, surely it must follow that having two legal parents recorded is better than having only one.

I believe that by allowing same-sex couples legal responsibility for a child born through assisted conception treatment, we are also safeguarding the welfare of the child. We must all recognise that same-sex couples do have children. However, on occasion female couples may need infertility treatment to help them have a child, as do heterosexual couples. By allowing them to go to a licensed centre and both register as the child’s parents we hope we would dissuade same-sex couples from carrying out unlicensed self-insemination at home. It also means that, in the event that something happened to the mother, there is another person who is the legal parent of that child.

Let me again clarify that birth certificates will not record that a child will have two mothers. The Bill sets out that the woman who gives birth to the child will be the mother and her female partner will be recorded as a parent. That is not a wholly new concept. Currently, if a same-sex female couple have a child as a result of assisted conception treatment, only the mother’s name will go on the birth certificate. If the second parent then goes through the process of

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adopting the child, an adoption certificate will be produced that has the mother’s name and the name of the second parent.

For married couples there is a presumption of legitimacy, when a child is born, that the husband of the mother is the father of the child, and he will automatically be recorded as such on the birth certificate unless proven otherwise. As your Lordships will recognise, births are already recorded where the husband of the mother is not in fact the genetic father and another man is. If the mother conceals that fact or is not certain which man is the father of her child, the birth register will contain an inaccuracy. I am not insinuating that that is acceptable behaviour; I am merely using this as an example to explain that birth certificates cannot necessarily be relied on to trace one’s genetic heritage.

With this in mind, the clauses in the Bill which confer legal parenthood on female second parents, and make consequential amendments to birth registration law, are there so that second female parents can have the same responsibilities entrusted to them as any mother or father.

I now turn to Amendment No. 142. The Bill consolidates the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 into the 1990 Act and extends them to same-sex couples. The 2003 Act allows for the registration of a man as a father to a child born as a result of assisted reproduction with donor sperm, when the embryo was created before his death but had not been transferred to his partner before he died. Clause 46 seeks to address any disparity by extending this provision to same-sex couples. In the case of female civil partners or female couples who are not civil partners, the Bill allows for the partner who would have been the parent of the child to be registered as such on the register of births if she dies before the embryo is transferred.

These provisions are intended to address a tragic scenario. They will apply where a couple have started assisted reproduction treatment to have a child together using donor sperm and an embryo has been created, but the partner of the prospective mother dies before the treatment has been completed.

The law applies for heterosexual couples, and I cannot see why it would not apply to single-sex couples, taking into consideration that the mother or the parent will have the choice of making that registration. In such rare situations, there are safeguards in place to ensure that the name is only recorded on the child’s birth certificate with the knowledge and consent of both parties. The provision allows for the child, in these circumstances, which are rare, to have two parents recorded on the birth certificate rather than one.

To sum up, all the provisions that I have outlined are in place to correct the current disparity and in turn to help safeguard the welfare of the child born through assisted conception treatment. Having two parents recorded on the birth certificate will help to achieve that. I invite the noble and learned Lord, Lord Mackay, to withdraw the amendment.

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5.15 pm

Lord Mackay of Clashfern: My Lords, I appreciate what the noble Lord said about the general situation; however, I only moved the amendment to Clause 46. The Bill makes it absolutely plain that it is nothing but registration; otherwise it is absolutely pointless. At the moment, I cannot see any particular reason for that. However, I do not wish to press the amendment. I am content to allow the clause to stand part of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Parental orders]:

[Amendment No. 142A not moved.]

Baroness Williams of Crosby moved Amendment No. 143:

After Clause 56, insert the following new Clause—

“National Human Bioethics Commission

(1) There is to be a body corporate called the National Human Bioethics Commission.

(2) Schedule (National Human Bioethics Commission) has effect.”

The noble Baroness said: My Lords, I shall also speak to Amendment No. 144. Noble Lords will remember that on Second Reading the noble Lord, Lord Brennan, who was then in fine health, proposed that there should be a human bioethics commission in this country, with a lengthy, detailed schedule indicating the ways in which the commission might be composed and the functions that it would have to carry out. That was followed by a speech by the noble Lord, Lord Alton, who spoke in some detail a month ago on the proposal. Therefore, I do not intend to cover the ground again, except very briefly. However, I will deal with a number of issues that have been raised since then in this House in debate and try to show that some of them are, to a great extent, due to a misconception.

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