Question for Short Debate
To ask Her Majesty’s Government whether they have plans to update the law on surrogacy.
My Lords, for 30 years this Parliament has shown the world how to legislate and regulate matters regarding human fertilisation and embryology. This House remains indebted to the noble Baroness, Lady Warnock, for her landmark report of 1978, which set out with such clarity the enduring ethical basis upon which parliamentarians, the judiciary, scientists and academics still judge the permissibility and advisability of successive scientific and medical innovations in the treatment of infertility.
The legislation that was drawn up three decades ago was designed with one overarching aim: to prevent the development of commercial surrogacy in the UK. In that respect, it has been successful. The authors of the Warnock report hoped in the 1980s that a restrictive legal climate in the UK would make surrogacy “wither on the vine”. It did not, but it has restricted the development of ethical, altruistic surrogacy. That is what I wish to talk about today.
In the last 30 years there has been considerable change in societal understanding of the composition of families. Parliament has, thoughtfully and rightly, updated the Human Fertilisation and Embryology Act 1990, most notably in 2008, to include same-sex parental couples and to regulate new developments in scientific knowledge and medical practice—for example, the banning of sex selection of embryos. However, one element of the legislation was founded on flawed assumptions from the start, the element that dealt with surrogacy. Thirty years on, it is referred to by academic researchers as “the fertility treatment that time forgot” and the law that relates to it as “thoroughly confused”. It should be changed.
The people who say so are judges in the Family Division who repeatedly state in their judgments that they are forced to make rulings that are not in the best interests of the children; intended parents, the people who at every stage intend to give lifelong care to the children; and surrogates. Here it is necessary to address a fundamental confusion that stems from terminology.
Earlier this year, I was privileged to listen to some young women who have been and are surrogates. They are absolutely clear that they are surrogates: they are never surrogate mothers; they are not the mothers of the children. In reality, the protection that the law gives to birth mothers is almost never wanted by surrogates, and it is not in the best interests of newborn children, whose intended parents are labelled as legal strangers, unable to make medical decisions at the early time of a child’s life, close to birth.
Leading researchers include Professor Margaret Brazier from the University of Manchester Law School, who chaired the review of surrogacy arrangements between 1996 and 1998, and others whom noble Lords will know, such as Professor Susan Golombok, Professor of Family Research at Cambridge, and Dr Kirsty Horsey, senior lecturer at Kent School, who has researched surrogacy for 18 years.
In May 2016, on “Woman’s Hour”, Baroness Warnock herself admitted that, back in the 1980s, she did not fully understand the motivation of surrogates and that now, as in the intervening years it has proved possible to encourage non-commercial surrogacy, she believes that the law should be changed.
Surrogacy is a subject that suffers greatly from sensationalist journalism and broadcasting. We are very fortunate, therefore, to have the research published by organisations such as Surrogacy UK, which has had a working group on surrogacy law reform. Those researchers admit that, while existing data on surrogacy are inadequate, in so far as it is possible to gather information from passport applications and applications for parental orders, the number of surrogacy arrangements is small but growing. In 2007, fewer than 50 parental orders were granted. In 2011, the number was 149, and of those approximately a quarter took place overseas. It is therefore safe to assume, in a way that the Daily Mail does not, that the majority of surrogacy arrangements are domestic.
The research also showed that only 15% of intended parents were gay male couples. Many intended parents are women who have survived cancer treatment. Happily, they are alive; but unhappily, they either cannot conceive or cannot carry a pregnancy to term, which is what they would wish. The majority of surrogates had been introduced to the intended parents through a surrogacy agency or support group; others were friends or family—as in a case recently in the news. None met through a commercial agency.
Of those who have given birth, 95% remain in contact with the children and the intended parents, which would suggest an openness and an ongoing affection in the relationship. The majority—just under 95%—of surrogates received less than £15,000 compensation. At first glance, that might sound like a significant payment, but when one stops to consider what it may cover—loss of earnings, because some employers do not give maternity pay to surrogates, although the law was recently changed to allow them to do so; rent or mortgage payments; income for the surrogate’s existing children, which many of them have; and travel costs—it soon becomes obvious that those payments rarely cover more than expenses, and they are closely monitored by the courts. Surrogacy UK uses a surrogacy calculator to help surrogate and intended parents to estimate the degree of the likely costs, and that is how most surrogates want it. They are surrogates because they want to help people for whom pregnancy is impossible. Their motivation is much misunderstood, and they can well do without unjust accusations that money is a dominant factor in their decision-making, when for most of them it is not.
Time is short, so I will leave it to more learned noble Lords to explain how the current law on parental orders causes problems not just for families but for the judiciary.
The number of people involved in surrogacy in the UK is small. A few, non-commercial organisations are developing surrogacy. For example, Surrogacy UK runs a Friendship First programme in which potential surrogates and intended parents can meet and, free from pressure, work out whether they could have a successful, enduring relationship—a relationship in which there is openness, transparency and pride for the children, the intended parents and the surrogates.
I suggest to the Minister that the rules on surrogacy-related advertising and its criminalisation could and should be reviewed, but only for not-for-profit organisations. Only charities or social enterprises registered as community interest companies should be allowed to advertise, and they should be required to include evidence of their legal status on all advertising. Nobody who is campaigning for a change in the law today wants the development of commercial surrogacy; all they want is to enable more people who freely choose to do so to be involved in surrogacy.
Noble Lords will be aware of a case that came before the courts recently in which a single person who had entered into a surrogacy arrangement abroad could not be considered the legal parent of a child in this country. That law will have to be reviewed because of incompatibility with the Human Rights Act. I suggest to the Minister that challenges such as that will become more frequent. We could amend this law in a piecemeal fashion, but we really ought to take the opportunity to legislate for surrogacy on an entirely different basis: not as a transaction but as a relationship between surrogates and intended parents.
I know that the noble Baroness has been dropped in to cover at short notice, and I wish her well with that, but I want to ask her some questions. She may choose to write to me; I will understand. Will the Government encourage the Law Commission, whose consultation on this closed on 31 October, to include a review of surrogacy legislation in its next programme of work? Will they commit to review parental orders, including parental orders in cases in which neither partner has been able to use their own gametes—the so-called double donation orders? Will they agree that parental order and surrogacy birth data should be centrally and transparently collected and published annually, and that IVF surrogacy cycles and birth should be accurately recorded by fertility clinics and the Human Fertilisation and Embryology Authority?
We have shown the world that, in this field of assisted reproduction, it is possible to make laws that reflect the realities of modern life while protecting the best interests of children. Surrogacy is, and will remain, a matter of intense importance to a very few people, many of whom are often misunderstood. I submit that this is an area in which there will never be a widespread, popular clamour for change in the law. It is a matter which needs detailed consideration. It is one in which Members of your Lordships’ House, even those who disagree in principle, should be involved in lengthy debate. Above all, it needs the Government to put their shoulder behind law reform which, in the interests of children, is now urgent.
My Lords, I am extremely grateful to the noble Baroness, Lady Barker, for initiating this debate, and I endorse everything that she said. She referred to Baroness Warnock’s recent acceptance that the law needed change and to a report published in 2015 by a working group led by Surrogacy UK which concluded that existing legislation was,
“out of date and in dire need of reform”.
The report recommended a complete overhaul of the law, introducing pre-birth parental orders. It is on the question of parental orders that I wish to focus my remarks.
I do so on the basis of a particular case where judgment was handed down on 25 October of this year under the name “Re AB (Surrogacy: Consent)  EWHC 2643 (Fam)”. The case arose out of a consensual, altruistic surrogacy arrangement. Embryos were created, using the genetic material of both biological parents, and twins were born in 2015. The embryos were transferred to the surrogate, who carried the twins to birth. The children have since had no contact with the surrogate mother and her husband, who have made it clear that they seek to have no involvement in the children’s lives.
It was agreed at a hearing involving all parties that the court should make a child arrangements order providing for the children to live with their biological parents. This gave them parental responsibility, and the orders made prevented the surrogate mother and her husband being able to exercise any parental responsibility in relation to the children. Except in one respect, the relevant criteria for the making of a parental order under Section 54 of the 2008 Act were met; that was in relation to the respondent’s consent. Section 54(6) provides that the court must be satisfied that the respondents have,
“freely, and with full understanding of what is involved, agreed unconditionally to the making of the order”.
Why did the surrogate mother and her husband refuse consent? Apparently, they did so because of a feeling of injustice about the process rather than being motivated in any way by the children’s best interests. Noble Lords may have seen the article by Alice Thomson today on page 28 of the Times, which goes into more detail about the facts of that case.
The lack of consent meant that the application for a parental order came to a juddering halt, which of course caused great distress to the biological parents. The children were then left—and are left—in a legal limbo which, contrary to what was agreed by the parties at the time of the arrangement, meant that the surrogate mother and her husband would remain the legal parents even though they were not biologically related to them and they expressly wished to play no part in the children’s lives.
The court acknowledged the “very unusual circumstances” of the case and said that it was prepared to accede to the request for the applications for a parental order to be adjourned generally, with liberty to restore. The problem is that a surrogate, as here, and her husband can refuse consent to orders of this sort for any reason or no reason at all. Effectively, the surrogate and her husband—who has no connection at all with the children—have a complete veto over the process. In this case, for nearly a year Cafcass and the court made extensive efforts to persuade the surrogate to “see sense”, put the interests of the children first and sign the papers, but those efforts came to nothing.
The law needs changing in this regard. The only circumstances in which a court can currently dispense with the consent of the surrogate and her husband is if they “cannot be found” or are “incapable of giving agreement”. I understand why those provisions were brought in: to cater for the situation where the surrogate might change her mind during the pregnancy, bond with the baby and want to keep it. In cases like the one that I have described, it is open to the biological parents to adopt their own children. Indeed, that may well prove to be the only option. It is something of an anomaly that, in adoption proceedings, the court would have the power to dispense with the consent of the surrogate and her husband and would be inclined to exercise that power if consent was not forthcoming.
If pre-birth parental orders are introduced, that will certainly assist, although it is understood that there will have to be some form of escape clause to deal with the problems of a surrogate changing her mind during the pregnancy. But where the issue arises post-birth, there will still need to be a satisfactory system to deal with parental orders. That could take the form of a welfare provision in relation to the child such as exists in adoption, which would make the welfare of the children paramount. Another possibility is that legislation could be amended to enable the court to dispense with the surrogate’s consent where consent was withheld unreasonably, or where the surrogate is not seeking to care for the child. Those two criteria are likely to overlap.
The situation is serious. The Law Commission is considering it. The Government should take notice of those concerns and take an early opportunity to legislate to deal with these serious lacunae.
My Lords, we should be grateful to the noble Baroness, Lady Barker, for initiating this debate and taking the lead on this subject as she has done. As she said, the law relating to surrogacy is seriously out of date. My main message this evening is that the law needs urgent updating, and that we should very much hope that the Law Commission would be able to include this task in one of its current projects. Despite the deadline for submissions officially having closed at the end of October, I learned in its acknowledgement of my submission that it would nevertheless be able to monitor this debate.
I shall give some brief examples of things going wrong at the moment. We have stories, some documented in newspapers, of newborn babies being handed over in car parks. We have the increased use of social media and self-help leading to what might be called underground transactions, sometimes in closed online groups. We have the courts and judges having to—rightly—bend the law laid down in 1985, and now out of date, to allow deadlines, time limits and even expense limits to be breached, for the very good reason of putting the best interests of the child first. That might be good British pragmatism, but it is not normally how we think of our law working and it adds uncertainty for following future cases. We should not rely on the law to be reformed only in response to outrage at a certain type of train-crash situation or worse. Having mentioned all that, I should say that the present system can work satisfactorily and happily for many people, but it is the increasing number of bad experiences, especially for those driven abroad by uncertainties, that need to be addressed.
I want now to mention two recent, largely academic milestones by those who have wanted to bring together the voices and opinions in this field, to assist serious reform taking place on the basis of more accurate information and data. First, in November 2015 an academic working group produced the excellent publication Surrogacy in the UK: Myth Busting and Reform, which is contained in full in the very useful Lords Library briefing for this debate and is available online. To give some credit, I say that the working group was led by the lead writer, Dr Kirsty Horsey, an academic lawyer at Kent Law School at the University of Kent, with strong support from trustees of Surrogacy UK, which is a not-for-profit agency and provider of information and support, as well as Sarah Norcross, the director of the Progress Educational Trust. For those who might wonder, that organisation is my personal link to this subject and past connection to related fields, going back to its foundation at the time of the HFE Bills in this House in the 1990s. It is good to see listening to this debate the noble and learned Lord, Lord Mackay of Clashfern, who took some of those Bills through this House. I know that he is interested in how the law will progress.
The report to which I referred supported the existing altruistic, compensatory model for surrogacy. One of its major recommendations was that much of the legal work that now takes considerable time after birth could be done before birth, so that the intended parents could register the birth and assume legal responsibility right from the start. Some of the existing legal time limits, already being breached, could be relaxed. The systematic collecting of information and data—currently lacking—would provide the basis for sound future decisions.
I come to the second recent milestone. As the noble Baroness, Lady Barker, mentioned, in May this year the aforementioned team convened an all-day conference in London, at which both she and I were present. It was a chance for all parts of this interest group to meet, debate and interact, as well as to hear from the varied experience of some surrogate mothers and to some extent, so far as possible, to arrive at a consensus for changing and updating the law. Again the consensus was in support of the present altruistic, compensatory model, but there was discussion about the extent of reasonable expenses, currently allowed under the law. Also, there was wide consensus that legal parentage should be granted to the intended parents before birth. As my time in this debate is a bit short, I shall just refer noble Lords to the report of the proceedings of that conference, which will be published by the end of this year in a special edition of the Journal of Law, Medicine & Ethics.
I want to mention one of my most remarkable Cross-Bench colleagues, who is listening next to me, the noble Baroness, Lady Lane-Fox, who has had her own recent known experience of surrogacy. She has asked me to say that she is happy to lend her full support to a reference to the Law Commission—a powerful endorsement.
As I have been saying, we hope that the Law Commission can look favourably on this subject as one of its projects. Given the timescale before anything might be turned into legislation, I hope that the Department of Health can produce, and keep up to date, guidelines for best practice in this field both for the medical profession and clinics and, quite separately, for the lay public wanting to know what their options are. Could the Minister give a commitment and timescale to that, and that the guidelines would be updated?
Finally and very briefly, I say that it would be helpful if the Minister could deal with one outstanding legal matter, which has already been referred to—the declaration of incompatibility in the High Court Family Division in May. Can the Government say how and how soon they will rectify what they are required to do under that judgment?
My Lords, it is a pleasure to contribute to the timely debate of the noble Baroness, Lady Barker. Not being a lawyer, I want to focus on the particular aspect of public perception of surrogacy and the law surrounding donation.
My parents had a great friend who was a doctor. He was a huge inspiration to me as a child and young man. Patrick Trevor-Roper, brother of the historian, Hugh, was an eye surgeon who helped to pioneer cornea grafting. He went round Africa restoring sight to thousands by removing cataracts. When I expressed my interest in what he did, he immediately invited me to watch him operating at the Westminster Hospital. I realise that it is not a prospect that might appeal to many noble Lords, but I was mesmerised. As he worked, I realised that we were listening to my father’s guitar sonatina, played by Julian Bream.
Pat was a maverick—bohemian, unorthodox. One patient arrived in his consulting room in Regent’s Park to find him peeing in the sink. These eccentricities seemed only, by and large, to endear him to his patients. He infuriated the art world with his extraordinary book, The World Through Blunted Sight, by suggesting that El Greco’s willowy figures were the result of astigmatism. In 1955, long before it was fashionable or wise to do so, he became one of the first gay rights activists, giving evidence to the Wolfenden committee.
The relevance of all that to the important debate introduced by the noble Baroness, Lady Barker, is that Pat taught me that, if one human being can make another whole by the gift of donation—of surrogacy—that was a completely normal and utterly joyous thing to do. He felt, 40 years ago, that too much taboo and squeamishness surrounded these most natural acts of procreation, acts which might assist intending parents who were often going through agonies of frustration as they attempted to have children.
As Surrogacy UK urges in its 2015 report we must guard the principle of altruistic surrogacy in the UK, surrogacy, as we have already heard, as a relationship not a transaction. We must learn to be less suspicious. Just as we need corneas, kidneys and hearts, so too do we need gifts from the living—sperm, for example. Here I would like to make a suggestion to the Minister to take back to her department. The law, as it currently stands, is careful to say that sperm donors are protected from pursuit by, for example, the Child Support Agency, only if they go through a licensed clinic. Clearly, you cannot have a loophole that would allow fathers to avoid their fiscal responsibilities—I completely accept that. But there are scenarios in which friends of the family, for instance, are keen to help, and where altruism reigns. I have seen this in heterosexual and gay communities, and it is profoundly touching. Furthermore, the law is discriminatory in that it favours better-off women who can afford to use expensive clinics but denies many poor ones access to donation. Wealth apart, should there not anyway be a provision for altruistic donation, one that could attract legal security and therefore attract more men to donate? It should surely be possible for a donor and a recipient to enter into a legally binding agreement without the use of an expensive clinic.
I have seen the misery and heartbreak of childlessness. When I did, I vowed to do anything I could to help—and I can tell noble Lords that there are few things in this world as rewarding as seeing, whether through surrogacy or donation, the successful outcome of this generosity from one human being to another. Are there risks? Yes, of course there are, as in everything else that we do, as we heard from the noble Lord, Lord Faulks—including having children in the usual way. The imperative to procreate, next to birth and death, is one of the great evolutionary acts of being human—it should belong to all of us.
My Lords, I, too, am most grateful to the noble Baroness, Lady Barker. Despite more than 50 years in law, I can claim no particular experience or expertise in this subject, although I have boned up on a number of recent cases. I have chosen to speak in this debate not to canvass any particular view as to how precisely to change and develop our existing inadequate surrogacy law, but rather to urge that this is, par excellence, a topic self-contained and policy-laden as it is, that cries out for attention by the Law Commission for inclusion in its imminent next programme of law reform. As the noble Viscount said, its consultation period on what projects to take ended on 31 October, but I have no doubt at all that it will take full account of what is said in this debate for which, alas, no earlier date was available. I have the very highest regard for the Law Commission—its chairman, commissioners, support staff and processes. In many debates in this House, we express regret about the lack of pre-legislative consultation on the various Bills before us, but such consultation is at the very heart of the Law Commission’s processes and, if ever it was desirable, surely it is so here, with regard to reshaping—as we now should—our obviously outdated surrogacy law.
In the 30-odd years since the Warnock committee report and the first surrogacy legislation in 1985, there has been a huge increase in the use of surrogacy to satisfy aspiring parents’ understandable and estimable craving for a full family life. This is due variously, no doubt, to advances in genetics; the expansion of social media, which so greatly facilitate surrogacy arrangements, here in the UK and abroad; and perhaps, also, to the widening recognition of differing types of secure family unit. All too plainly, the law has struggled to keep up with those developments. As others have already said, some of its basic architecture has been causing problems, most notably perhaps in the provision for parental orders to be made only after birth. This results in the surrogate mother and her spouse being at birth the legal parent, the biological parents being wholly dependent on the surrogate’s consent for an order, and the child in the meantime being in legal limbo. That particular aspect of the law was admirably brought to light in the piece mentioned by the noble Lord, Lord Faulks, in today’s Times by Alice Thomson, plainly based on the very case that the noble Lord, Lord Faulks, cited and has now described—as I was proposing to do but now need not do.
But this is far from the only problem that arises in this ever-expanding, sensitive and profoundly important area of our law. As has rightly been said, parental orders are transformational; they go to the very identity of the child as a human being. Another problem encountered was the inability of the court to make a parental order in favour of a single father, as opposed to a recognised couple, declared by Sir James Munby in the case of Z this May to be incompatible with the father’s and child’s rights under the European Convention on Human Rights—the one mentioned by the noble Viscount, Lord Craigavon. It may well be, and the Minister may inform us about this, that that particular problem will be solved by way of a ministerial order under Section 10(2) of the Human Rights Act. But even if it is, surrogacy law as a whole would to my mind be best reviewed and brought up to date in the light of a Law Commission report. As Alice Thomson said at the end of her article today, it is true that the Law Commission could take years, but I question whether the problem that she and the noble Lord, Lord Faulks, have fully described can be regarded as,
“a simple anomaly that could be changed right now”.
Law reform is now required but, in a controversial and difficult subject such as this, I would urge that it be done with the initial involvement and invaluable assistance of a Law Commission report.
My Lords, it was not my intention to speak in this debate but since the noble Lord, Lord Winston, has not been able to come, I thought that I might take up just a little bit of the spare time. As the noble Viscount, Lord Craigavon, has said, it was my responsibility to introduce the Human Fertilisation and Embryology Act in the 1990s. It was immensely helped by the work that Mary Warnock had done before that. There was still quite a lot of debate, as those who were here will remember, about various matters, including the very contentious matter of embryo research. This particular matter was dealt with in the law in the way that it was, mainly because, at that time, the general impression was that the arrangements for transfer of sperm material should be confidential. Therefore, unless there was some clear indication, it was not clear who the child belonged to in the real sense, except that there could be certainty that the child was born of a particular person. So that was what was done at that time. In 2008, there was a relaxation of a number of these issues, but I think that it is quite clear that this kind of difficulty ought to be dealt with now or as soon as possible.
Mary Warnock’s report was, as I said, a tremendous help in getting the legislation through, and a proper investigation by the Law Commission would be extremely helpful now in getting legislation through. I agree that the Law Commission can take some time—it was my responsibility at the time that I was Lord Chancellor to be Minister for the Law Commission and we were able to get a lot of the legislation through—but the time that it would take is really a matter for the commission. I think that a fairly thorough investigation would be needed, but I do not see that a thorough investigation needs to be very long. I hope therefore that if the Law Commission is empowered to take this on by a programme which includes it, then things could proceed quite quickly. It would involve a good deal of consultation but, as my noble and learned friend Lord Brown of Eaton-under-Heywood said, the Law Commission really invented the system of pre-legislative consultation. Lord Scarman, the first chairman of the Law Commission, developed that in a way that Governments have taken up. So the Law Commission knows all about dealing with complicated issues such as this. I hope that it might be able to do it quickly, and I sincerely hope that the Government will think it right to refer the issue to it.
My Lords, I am grateful to my noble friend Lady Barker for raising this important topic tonight and I agree with everything she said. There are, as we have heard, many issues to untangle and I, like the noble and learned Lord, Lord Mackay of Clashfern, hope that the Law Commission will be able to consider what changes need to be made and make recommendations. I hope that the Government will then find time, during a very busy legislative programme, to take up these recommendations and make the necessary changes to bring the law up to date, which is being called for by parents and by judges.
It is desirable that every child is a wanted child, because it means that the child will be loved and that is what he or she needs, much more than a well-filled Christmas stocking. So, for the sake of the children and their new families, I hope we will hear from the Minister some willingness to put right the problems that have been outlined and which beset many couples trying to make a family through surrogacy. As we have heard from my noble friend, there are many reasons why people have to resort to surrogacy and clearly it is growing, so we must make sure that the law is brought up to date, adapts to changes in society and protects all those involved. The first principle, of course, must be the rights of the child and its health and well-being. Secondly, the rights of the surrogates and the commissioning parents must be fairly considered. Even though we have heard about some of its shortcomings, the law in the UK at least gives some sort of framework for this, but rules around the world vary. I hope the UK Government would take a lead in trying to get some comprehensive universal principles adopted, once we have our own house in order.
In preparing for this debate I read the debate in another place from 14 October 2014, and was very struck by the many practical difficulties encountered by MPs on behalf of their constituents. Even though the couples had tried to do everything correctly, they often met a brick wall. Many of the cases cited by MPs were of people who had resorted to surrogacy abroad because accessing it in the UK was too difficult or complicated, getting a passport for the child was slow or they were unsure of the law. There were lots of reasons, but brick walls were encountered. In those cases, it cannot be right that complications and delays in the administrative procedures for bringing the child home should cause a child to be without his or her parents in those first vital few months of life when bonding with the principal carer should be taking place, which is so important for their future mental health. But that is what happened in too many of those cases cited in another place.
We need a transparent structure that is as uncomplicated as possible, we need data—as the noble Viscount, Lord Craigavon, emphasised—and we need clear advice for parents intending to set out on this route to parenthood. Of course, this often happens only when many years have been spent exploring other routes, and failing with all the pain and stress that this causes. Sometimes, parents turn to other countries because they are considered too old to adopt a child in the UK, after many cycles of IVF have failed.
I agree with many of the demands of the organisation Surrogacy UK, in particular that a parental order should be applied for prior to the birth so that the child is never left without both its parents being known or, as in some cases, left stateless. I certainly agree that there should be no commercialisation of surrogacy. This is a wonderful and generous thing that a woman can do for another or for a same-sex couple and it should not be commercialised, apart from appropriate expenses. That brings me to fears that have been expressed about exploitation of surrogate mothers in other countries. This is a very difficult issue, as many of those who offer to bear a child for others live in very poor countries. There is nothing wrong with ensuring that she and her other children, if she has any, remain healthy, well fed and without stress during the process—but how do you ensure it is limited to that? It is very difficult. Large payments would be bound to lead to women who were not suitable seeking to be surrogates. This would be contrary to the principle that the mother must be protected as well as the child. We need some international standards to prevent that.
Another recommendation is for a clear agreement between the commissioning parents and the surrogate. There are so many things that may need to be decided and things that can go wrong; these need to be laid on the line right from the start. I certainly think that “friends first” is a very good idea.
From the health point of view, it is of course highly desirable that infertile couples get as much medical help as possible and in a timely way, so that surrogacy is not necessary. If that were the case, would-be parents may not have to take that route. Also, if UK surrogacy law were more in line with what is needed in today’s society, people would not need to go abroad. So I ask the Minister to promise us today that the Government will support the Law Commission review and act on its recommendations if it happens.
My Lords, I, too, welcome the initiative of the noble Baroness, Lady Barker. I endorse her praise for Baroness Warnock’s outstanding work, which led to the legislation which the noble and learned Lord, Lord Mackay, took through the House. I very much hope that he will speak more often in the gap in future because his contributions in this area are always so welcome.
The noble Baroness, Lady Barker, spoke compassionately and persuasively in favour of updating the law to deal with some of the problems she identified. The noble Lord, Lord Faulks, illuminated the problems arising from a case where the children were left in limbo. However, as the noble and learned Lord, Lord Brown, said, this, of course, is not the only problem. The report of Surrogacy UK, which was endorsed by Baroness Warnock, sets out very clearly some of the challenges that we face with the current law. The report concludes that,
“the time is ripe to embark upon reform of surrogacy law”,
and makes it clear that the current law is,
“out of date and in dire need of reform”.
I will refer to three areas that the report identifies. First, it states:
“Our recommendations for reform centre on the welfare of surrogate-born children and on realigning the law with their best interests”.
Secondly, it states that,
“the principle of altruistic surrogacy in the UK”,
must be guarded. Thirdly, it states:
“The law must recognise the correct people as parents of children born through surrogacy”.
I also draw the House’s attention to the three recommendations the report makes to the Government. First, it states:
“The Department of Health … should … publish a ‘legal pathway’ document for intended parents and surrogates”.
That is a very interesting and important recommendation. Secondly, the report states:
“The Department of Health should produce guidance for professionals in the field”.
Thirdly, the report states:
“Surrogacy should be included in schools’ sex and relationships education”.
Perhaps the Minister, in responding, will say whether the Government have considered those three specific recommendations and are prepared to take them forward.
The noble and learned Lords, Lord Mackay and Lord Brown, and the noble Viscount, Lord Craigavon, emphasised their desire for the Law Commission to undertake a review. It has undertaken a consultation and the noble Viscount, Lord Craigavon, said that it is monitoring this debate. We appeal to the Government to refer this matter to the Law Commission.
If the Law Commission option is not taken forward, will the Government then be prepared to undertake their own review of the law? It is clear that, one way or another, we need this issue taken forward. The work needs to be done carefully but at a pace. I hope that the Minister will give us a positive response tonight and I look forward to her comments.
My Lords, I thank the noble Baroness for raising this important subject for debate. I also thank all noble Lords for their contributions on this highly sensitive, contentious and complex issue.
There is no doubt that surrogacy has an important role to play in our society, helping to create much-wanted families where that might otherwise not be possible. As the noble Lord, Lord Berkeley, mentioned, it enables relatives and friends to provide a truly altruistic gift to women who are not able to have a child themselves, and helps same-sex couples to have their own genetically-related children—and, of course, the UK Government recognise the value of this.
The legislation ensures that the woman who gives birth—the surrogate—is regarded as the child’s mother until legal parenthood is transferred, and that surrogacy arrangements are not legally enforceable. This is to avoid the situation of a newly-born child being taken away from its birth mother against her wishes.
Legislation sets out the criteria for a parental order to be awarded to transfer legal parenthood from the surrogate to the intended parents. These include: the requirement that genetic material of at least one of the intended parents is used to create the child; that the surrogate should be paid only for reasonable expenses; and that there is a “cooling off” period of six weeks after the birth before an application for a parental order can be made. It also provides for a six-month window after the birth for applications to be made.
These are some of the key provisions and principles that are currently in effect. However, as the noble Baroness, Lady Barker, mentioned, we all recognise that there are well-founded concerns about the struggle that surrogacy policy and legislation are facing to keep pace with 21st-century attitudes and lifestyles. This legislation is based largely on thinking and debate from the 1980s. We recognise that family structures are now much more diverse than when the policy and legislation were originally developed. The ability of intending parents to go outside the UK for surrogacy and return with a child is a particularly challenging situation.
The courts have increasingly had to address these issues when dealing with surrogacy cases and, as the noble Baroness, Lady Barker, mentioned, have expressed concerns about the legislation when doing so. Most recently, the High Court delivered a judgment in May that the legislative provision which allows couples, but not single people, to obtain parental orders is incompatible with human rights—a judgment which the Government have accepted.
Noble Lords will be aware of Surrogacy UK’s 2015 report, Myth Busting and Reform. This report reflects the views of some people who have undertaken surrogacy arrangements, either as intended parents, surrogates or supporting family members. The Government have welcomed the report’s continuing commitment to the altruistic principles of surrogacy and the important message about applying for parental orders to secure legal parenthood. It is also helpful that the report provides reassurance that the tendency towards seeking international surrogacy arrangements, although undoubtedly a concern and a challenge, is not as widespread as some have sought to portray. The Government have taken note of the changes to surrogacy legislation and policy that the report recommends.
It is worth noting that other parliamentary colleagues have exchanged correspondence with the Children and Family Court Advisory and Support Service— Cafcass—about the Surrogacy UK report. Cafcass has made a point of saying that it disagrees with the report recommendation for the introduction of pre-birth contracts to transfer legal parenthood from the surrogate mother immediately upon the birth of the child. That is an indication of the difficult and contentious ethical issues that potential review or reform of surrogacy raises.
I have listened with great interest to the points made in this debate. For some time, the Government have considered potential positive action that could be taken on surrogacy, and many of the points made tonight are therefore familiar through that consideration. Three key strands of government activity are being developed, which I will draw to the attention of the House.
First, the Department of Health intends to produce guidance on surrogacy arrangements in the UK, including best practice and clarification about the process and the legislation. This will provide authoritative information for people who are considering surrogacy. It will reflect the ground rules of the current arrangements in the UK and emphasise the benefits of undertaking surrogacy in UK-licensed clinics rather than going abroad. It will make clear the importance of seeking and obtaining a parental order to confer legal parenthood.
A project group has therefore been established to produce the guidance in close collaboration with key surrogacy organisations and other stakeholders, taking account of their input about the particular issues on which clarity and information is most needed. The aim of the project is to produce guidance on surrogacy for professionals, surrogates and intended parents to improve experiences under the current system. A number of meetings have taken place already, and good progress is being made. The intention is to complete the project and disseminate the guidance after Easter 2017.
Secondly, the Government recognise that surrogacy policy and legislation have not been significantly addressed by respective Administrations since the Surrogacy Arrangements Act was introduced in 1985. We have heard and taken account of the arguments for the need for a review. As a result—in answer to the question asked by the noble Baronesses, Lady Barker and Lady Walmsley—the Government informed the Law Commission that they fully support the commission’s proposal to include a review of surrogacy in its work programme from 2017.
The Law Commission’s consultation on its work programme concluded on 31 October and referred specifically to the Government’s support for the inclusion of a review of surrogacy. The Government have strongly encouraged all those with an interest in or views about surrogacy to respond directly to the commission, supporting the inclusion of surrogacy and setting out the particular aspects, views and issues concerning surrogacy that they consider important and wish to see covered by the review.
As I have already indicated, there are differences in opinion across the surrogacy sector about the changes that could or should be made, including some of the recommendations in Surrogacy UK’s report. It is important that we do not prejudge the positions. Having encouraged all interested parties to make their points to the Law Commission as part of the consultation process, it is now for the commission to assess the totality of views expressed in coming to a conclusion about any proposed final work programme.
The third strand of activity concerns the Government’s response to the recent High Court judgment that declared that a provision in the Human Fertilisation and Embryology Act 2008—which enables couples but not single people to obtain a parental order following surrogacy—is incompatible with the Human Rights Act. We will, therefore, update the legislation on parental orders to ensure that it is compatible with the court judgment. I can confirm that the Government will introduce a remedial order to achieve this, so that single people can apply for parental orders on the same basis as couples. The remedial order will be subject to consultation and will include transitional arrangements, which would put all single people on the same footing and allow a reasonable time period to apply. The House will recognise that there are complexities and a considerable number of consequential amendments to other pieces of legislation, so our current plan is that the remedial order will be introduced to Parliament in early 2017. This strand of work will be undertaken separately to the Law Commission’s considerations of a potential wider review of surrogacy.
I am sorry that I galloped through that, but I always feel that the 12 minutes will be up so soon that I will not have time to go through everything. That is why it sounded like a terrible gallop. However, I hope that noble Lords were able to understand the points I made rather than feeling that I read my speech parrot-fashion, which I did not want to do.
I will answer some of the questions that were raised. The noble Baroness, Lady Barker, mentioned that surrogacy should be looked at as a whole, to include all aspects of parental orders. We absolutely agree with this, and I will certainly go back to the department with consideration about improved information collection.
My noble friend Lord Faulks mentioned the case reported in today’s Times. This is an unfortunate case, but thankfully very rare. Nevertheless, that does not help the parents who are trying to deal with it at the moment. Consent is a very important principle, which underpins all the legislation concerning assisted reproduction that Parliament has agreed. Any isolated amendment to surrogacy law, such as that relating to consent, would be controversial given the range of views held about surrogacy. Parliament would expect a thorough public consultation about any proposed changes to legislation in this area. We have given this issue consideration and our preference is therefore for it to be explored through the review by the Law Commission as part of the broad policy area.
The noble Viscount, Lord Craigavon, mentioned maternity units that ask couples to exchange their babies in the car park. The Government absolutely do not support the practice of surrogate families being forced to move off NHS premises after the birth of children. Altruistic surrogacy is an alternative approach to family-building, not a form of child trafficking. The Department of Health has recently established a project group with surrogacy stakeholders to develop best-practice guidance on surrogacy for those considering entering into such arrangements and for care professionals to increase awareness and understanding of the key issues and improve the experience of those undertaking surrogacy arrangements.
The noble Lord, Lord Berkeley, talked about Patrick Trevor-Roper. That was rather extraordinary as I did my eye surgery nursing under him and he became a huge friend of mine—partly because the only bit of nursing I could not bear was eyes. Every time I went into surgery, he told me what he was doing and I watched with my eyes shut, which was not best practice. But he was certainly the most marvellous man and very much a mentor to me during my nursing training at Westminster Hospital.
The noble Lord asked whether sperm donation could be allowed with protections. There are no plans for this but I will look into the matter further and write to him.
The noble Baroness, Lady Walmsley, asked about support for an international agreement. The UK Government are willing to consider supporting an international agreement on legal parenthood, including surrogacy, to help safeguard children who travel across international borders. UK officials are currently participating in feasibility considerations with the Hague working group. However, it is important to recognise that there may be significant difficulties in preparing such an agreement due to the evolving nature of much local legislation on surrogacy and the sensitivity with which it is regarded in many countries. It would be for individual counties to determine how such an agreement might impact on issues such as nationality. Such an agreement could also be a way of minimising the risks of child trafficking.
I think that the noble Lord, Lord Hunt, asked three questions. I will need to get back to him on those if that is all right. I think that the answers are yes, yes and yes—but I do not want to say that if it is not correct. However, that is my belief.
I can give noble Lords a clear and unequivocal message that this Government recognise the value of surrogacy as a means of helping to create new families for a range of people who might not otherwise be able to have their own children. It is in that spirit of inclusiveness and equality that we look to the future and to surrogacy in the UK being updated for the 21st century. We very much welcome the significant steps that are now beginning to be made in that direction.