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Jessica Lee (Erewash) (Con)
It is a great pleasure to speak in front of you during this important debate, Sir Edward. I am grateful for the opportunity to raise the matter in Westminster Hall today.
Of the many functions of Parliament, one of the most important is to respond to changes in society and, when appropriate, to legislate accordingly. The law on surrogacy is outdated, limited and in places illogical. It is difficult to see how the current law, such as it is, can be said to help people who are starting families without the process involving significant stress and risk. Although there is no small or completely straightforward change to alleviate such problems, the time has come for Parliament to take a fresh look at the rules around surrogacy and to commit to helping people to start a family. I have some experience and interest in the matter from my time as a family law barrister.
Surrogacy is on the increase. Despite a lack of official figures, save for what is recorded on the parental order register, it is estimated that between 1,000 and 2,000 children are born through surrogacy each year, which is up from between 50 and 100 in 2008. The numbers are rising sharply, which is why the time is right for Parliament to explore the solutions to help the families and surrogates involved in the process. To start with, it is worth considering why families or individuals turn to surrogacy. There are of course several reasons, including unexplained infertility, cancer, couples being of the same sex or, occasionally, individuals wanting a child. Whatever the reason, however, the current system has uncertainties throughout. Some commentators have described surrogacy as a legal and political minefield, which may be right, but Parliament’s role is to face up to such problems and to try to find solutions.
Not only are there problems with the law in this country, but an international framework for surrogacy, unlike adoption, is lacking. The rules in the UK are so ambiguous that potential parents are increasingly turning to other countries to find surrogates, which has its own problems. The lack of an international structure leads to delays and complications when they return to the UK with their children. The problems were highlighted over the summer with the case of baby Gammy, one of a set of twins born to a surrogate in Thailand for Australian parents. Gammy happens to have Down’s syndrome, and there is a dispute between the surrogate and the intended parents as to the reasons why he is now separated from his twin, who has gone to Australia. It cannot be right for such children to be left without a clear set of international rules to resolve the dispute.
The Minister may not be surprised to hear that I am not short of possible solutions to the issues around surrogacy and ask her to reply directly to my proposals. I am sure that she will agree that the current system has problems and those problems must be the starting point. With that in mind, I am sure that she will be grateful for the opportunity to work with me and others and across Government Departments to help families by seeking solutions that can reform the system.
In summary, I am calling for the following changes. First, I want new legislation to be brought forward to update the law or to amend the current legislation to help prospective parents and surrogates. Secondly, there should be written agreements for those going into surrogacy to ensure that all potential future issues around the pregnancy have been discussed and agreed. Thirdly, I want an international framework for surrogacy. Fourthly, there should be a code of practice for prospective parents and surrogates. Fifthly, we should have pre-birth orders, because it is right that there should be an immediate transfer of parenthood upon birth. Sixthly, payments to surrogates need to be regulated and transparent and should be for the surrogate’s “inconvenience” rather than for the acquisition of a child. Finally, we should end the non-extendable deadline of six months for applying for a parental order. I will discuss a related development that came in a recent judgment later, but it cannot be right to have no flexibility in a family law application of this nature.
The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990 provide for the current legislative arrangements. The 1985 Act made it a criminal offence to advertise for a surrogate mother, to advertise oneself as a prospective surrogate or for third parties to broker a surrogacy arrangement on a commercial basis. The Act made the UK surrogacy arrangement unenforceable and the legislation was perhaps aimed to discourage surrogacy. The reality, however, was that surrogacy cases were beginning to rise in the UK and the legislation left the whole structure without professional support, which was reflected on by High Court judges at the time. In 2007, Mr Justice McFarlane commented:
“Given the importance of the issues involved when the life of a child is created in this manner, it questionable whether the role of facilitating surrogacy arrangements should be left to groups of well-meaning amateurs.”
He makes a good point.
The 1990 Act created for the first time a bespoke legal process enabling married intended parents to reassign legal parenthood to themselves and obtain a parental order. It was updated in 2008 and extended those eligible to apply for a parental order to include unmarried and same-sex couples. That, however, is it. That is our entire legal framework. The various pitfalls in the current legislation are many and I will now speak of how Parliament can best legislate to help all involved.
Enforceable written agreements and a code of practice would deal once and for all with the uncertainty surrounding surrogacy. There are an infinite number of questions to ask before going into a surrogacy arrangement. A written agreement and a code of practice would provide clarity for intended parents and for surrogates. All those involved need proper advice and proper safeguards against all eventualities. What if the pregnancy results in more than one baby? What about communication between all involved during the pregnancy? What if the child has a disability? What about the arrangements for the actual birth? Those are just a few of the obvious, practical problems that need to be addressed and could be addressed by written agreements.
I have been discussing the matter with other MPs and some of my constituents. Following a conversation with a couple in my constituency, I will put it like this: I would not expect my constituents—the good people of Erewash—to have to purchase a house or lease a car without a contract, so why when trying to form a family, which is the most important thing that they will ever do, with a surrogacy would they do so with an inadequate framework? It cannot be right, but it is within Parliament’s power to change the rules.
The next change I would like relates to pre-birth orders. It is important to establish legally who the parents are from the moment of birth. At the moment, the surrogate, and their spouse if they have one, are the legal parents of the child. It has been said to me over the past few days that there is always the risk that surrogates will change their mind and that it must happen all the time. It is a common misconception. To my knowledge, only two cases of surrogates seeking to keep their baby have been reported in the past 30 years compared with some 1,000 successful arrangements. Typically, surrogates are mothers who have found pregnancy easy and then want to help other families. They have a commitment to help the intended parents and want to see them have their own family and see the child grow up in that unit. We need to support those women and to make the law work for them.
Furthermore, many children are being born abroad, if the surrogate is based there. That creates more problems, because the child can be born stateless, making arrangements to come home to the UK complex. If the parental order could be obtained during the pregnancy, arrangements to come home with the child would obviously be far more straightforward. A number of MPs have dealt with scenarios in which a child is born abroad and there are difficulties in returning to the UK.
The international context of surrogacy can add to the difficulties of applying existing UK legislation to the reality of modern surrogacy. Surrogacy law can be complex for foreign surrogacy arrangements. There is no international harmonisation of English and international law, and we do not automatically recognise a foreign birth certificate naming the donor parents as the legitimate parents of a surrogate-born child. In stark contrast with adoption, which requires the thorough vetting of parents, anyone can enter into a surrogacy arrangement abroad.
Automatic recognition of the surrogate as the legal mother, however, can cause its own problems in the context of international surrogacy agreements. In 2008, a British couple who had paid £23,000 to a surrogate mother who bore twins for them in Ukraine were at first unable to bring the children back to the UK, since the couple were not recognised as the legal parents. That situation took a year to resolve, during which time the children were left “marooned, stateless and parentless”, leading the judge dealing with the case to issue a stark warning about how dangerous such a scenario is.
There are many practical problems to getting home safely to the UK with the surrogate-born child after the birth, because of issues to do with the right travel papers, entry clearance and citizenship. Parents then have to look at the legal status of the child as soon as they return and any necessary interim legal measures. For instance, are the eligibility criteria for a parental order all in place? What about the legal position of the surrogate, and her partner if that is relevant, under English law? The complications are many.
Rules on surrogacy vary from country to country, so not only do we need to look at our domestic law, but all countries ultimately need to look at the international framework. In some countries, surrogacy is banned completely, such as in Germany, Italy, France and Sweden. In some countries, the law is complex, such as in the UK and Australia. Elsewhere, 19 states in America have laws clearly recognising surrogacy and another 10 states allow unpaid surrogacy. Also, anecdotally, I know of same-sex couples who have moved to the States with work, in part because they know that in due course it will be more straightforward there for them to have a child through surrogacy. Thus, all children born via surrogacy in the USA are eligible for a US passport, regardless of the citizenship of the parents, but that is inconsistent with other countries.
In July this year, the Government of Thailand announced changes to their regime for commercial surrogacy, stating that all surrogates will have to be blood relatives. As I made reference to earlier, a case in Thailand hit the headlines over the summer, and one can only feel sympathy for everyone involved in it. The case of baby Gammy, however, absolutely highlights the pitfalls and difficulties for all concerned. The outcome of such international situations—involving Thailand in this case, but it could be anywhere—might be that surrogate arrangements become more covert, and no one wants that. What we want is clear and transparent arrangements in this country and abroad.
Stuart Andrew (Pudsey) (Con)
I congratulate my hon. Friend on securing this important debate. Among a number of concerns, many people fear exploitation. Is not preventing that another reason for the importance of reaching international agreements?
Jessica Lee
My hon. Friend makes a good point. The way to avoid such exploitation is clearly to have a clear and transparent structure. That is what is missing in domestic law, where there are arrangements, although they are not working properly, and internationally. Far fewer UK couples would consider going abroad if the domestic arrangements for them in England and Wales were completely straightforward, preventing them from feeling the need to travel around the world to find a suitable surrogate.
Parental orders, as I said near the beginning of my speech, have a strict six-month deadline in which to be registered once a surrogate has had the child. The law provided for no flexibility on that until very recently—a judgment was published in the past few days. In that case, the president of the family division of the High Court made the following comment:
“Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late…It is the very antithesis of sensible; it is almost nonsensical.”
The judge then went on to make the parental order and the wardship was set aside. There had been significant delays in returning the child to the UK.
It can be said, therefore, that case law has moved matters forward, but the rules remain the same and that is a matter for Parliament to resolve and to do so early. We are dealing with people’s families and with emotive issues. That is the most important thing. If there cannot be flexibility in obtaining a parental order, that is a most unsatisfactory position. That must be one of the first matters in which there has to be flexibility in an application under family law.
I want to address the issue of same-sex couples. Since the Marriage (Same Sex Couples) Act 2013 passed through Parliament, we probably have had an increase in the number of same-sex couples looking to have a baby through surrogacy. That has been on the rise for some time, but the Act supports it as well. On Second Reading, the Minister gave one of the most thoughtful and measured speeches on the legislation, which I recall clearly, so I am delighted that she is responding to the debate today. She has always taken a thoughtful approach to the issues surrounding same-sex couples.
In the UK, anecdotally, same-sex couples conceive with the help of a friend, relative, or a surrogate introduced to them by a UK-based non-profit surrogacy organisation. As we know, such surrogacy arrangements commissioned in the UK are unenforceable by UK courts, so the problem remains. Increasing numbers of same-sex couples are travelling abroad for surrogacy. As I mentioned earlier, a popular destination is the USA, because some states can guarantee that both fathers will be named on a child’s birth certificate from the outset. But, again, we come back to the problems that I have raised before. Parliament did well by passing the same-sex marriage Act and progressing matters in that way, but for issues that follow on from that, Parliament needs to do the same. We must have an even-handed approach in addressing every aspect of people’s social and family lives, and that is why we need to update the law.
I have set out for the Minister my key requests. I accept that they are not small ones, and some will take time to grant, in particular those concerning an international framework. However, I genuinely feel that there is a real change in emphasis. There is a momentum to address the issue. Judges, as I have quoted, are saying that statute law is not right, and we need to move matters forward. We have an opportunity here today to take the initiative. We very much need to start the process, which would be welcomed across the parties. I have been helped by the right hon. Member for Birkenhead (Mr Field), who apologises for the fact that he cannot be here today. There is strong cross-party support for moving things forward. I urge the Minister to take this one-off opportunity and take a stand today and offer some solutions to these complex and extremely important questions, which could transform people’s ability to have their families in this country.
Richard Harrington (Watford) (Con)
It is a great pleasure to speak in this debate under your chairmanship, Sir Edward. I congratulate my hon. Friend the Member for Erewash (Jessica Lee) on securing the debate, which, I know, is an extremely difficult thing to do.
I am here today because I had a surrogacy case concerning a constituent, and nobody could help me to help my constituent other than my hon. Friend, who gave so much of her time and showed a level of expertise way beyond the remit of this House. I am not sure whether that expertise was professional or political, but it was a huge help and I am very grateful to her.
That case gave me an interest in the subject, and in surrogacy from an international perspective. Some constituents of mine, the Patels, who are both UK citizens and who have lived in Watford for many years, decided to enter into a perfectly legal surrogacy agreement in India—I understand that surrogacy is legal there, both nationally and in each state. The surrogacy took place in a place in India that they knew well. There was no question as to their British citizenship or indeed that of the baby.
Notwithstanding that, I was shocked to find that despite my constituents having a legal contract and a certificate from the Home Office signed on behalf of the Home Secretary, and despite having done everything they possibly could—that was extremely expensive for them, but they are a decent, law-abiding professional couple and did everything properly—their son spent the first eight months of his life without meeting his father. It might seem ridiculous, but the father had to send the Home Office not just his birth certificate, but his passport, so that proceedings could take place. He therefore could not go to visit his son in India. Despite every effort by his solicitors and others—I even spoke to the high commissioner in India—the case was treated as an administrative matter about passports, and everyone was told to look at the website, with its 16-week service standard. No one was interested in the surrogacy aspect of the case.
I must commend the efforts of the Immigration Minister, whose office regularly contacted the Passport Office. However, I began to realise something that my hon. Friend the Member for Erewash had warned me about—surrogacy is not understood at all because there is no international agreement or protocol. I know nothing about this sort of thing myself—I have picked up this information from one particular case. It seems absolutely ridiculous that people who are trying to do everything properly, who have done what their lawyers have advised them and who have dotted the i’s and crossed the t’s, still had to wait weeks and months, as if the case was a passport application for an immigrant and there was a suggestion of fraud or some kind of trickery.
When my hon. Friend told me of her intention to campaign for an international agreement on surrogacy because of the need to bring things up to date, I thought that fell exactly in line with what my constituents wanted. To this day, the baby is in India, despite the fact that, as a result of the Immigration Minister’s good intentions, the father got his passport back. He has been able to go and spend time with his baby, although temporarily he has had to give up his professional practice. That situation is outrageous.
I commend my hon. Friend for what she is doing. She is one of the leading experts in the field, both in this House and in the legal sphere. I wish her all the best and am pleased to be able to support her in this debate.
Stephen McPartland (Stevenage) (Con)
It is a pleasure to serve under your chairmanship, Sir Edward, and to follow my hon. Friend the Member for Watford (Richard Harrington) who, as always, has given an impassioned defence of his constituents’ interests. I congratulate my hon. Friend the Member for Erewash (Jessica Lee) on calling this important debate.
Surrogacy is a complex minefield, as we are all aware. Many Members of Parliament are concerned about the issue but, as we can see from the Chamber today, they are not keen on speaking about it publicly, because it is complicated, with many facets and problems. There are some religious undertones to the subject. I am pro-life and support all life. As a Catholic, I know that some Churches do not support surrogacy, but my view is that, whether or not it is supported, there is a system in place that we need to try to fix, as the exploitation of people using surrogates must stop.
Some of my constituents have fertility problems. They have looked into surrogacy as an option, but they have found it to be such a minefield that they do not wish to pursue it, despite the fact that having a child is their lifelong dream. At the moment, there is a real problem that is affecting our constituents.
As technology moves on, the way in which surrogacy is done has evolved over the years, but essentially we are still talking about a woman carrying and giving birth to a child for somebody else. There are a huge range of problems. For example, in the United Kingdom, we do not know how many children are conceived through surrogacy. We are a 21st-century modern democracy, but we do not have the full figures. There are no official records apart from the parental order register. To put that register into context, an estimated 1,000 children are born through Indian surrogacy each year, but in 2012, the family court granted only 213 parental orders. That suggests that there maybe thousands of children in the UK living with adults who are not their legal parents.
That may not be an issue for many people, but let us consider what my hon. Friend the Member for Watford said about families wanting to do what is legally correct and best for those children. As my hon. Friend the Member for Erewash stated, many of the children are born stateless. If they try to get into university, for example, which type of fees will they pay—the fees for foreign students or those for domestic students? How will they access and enter higher education in the United Kingdom? What if they have a problem accessing benefits in future because of some of the changes that we have made to access to benefits—if someone is considered stateless, how will they access benefits? Surrogacy impacts on a huge range of issues for families. As we change laws in the UK, the impact on those families will get bigger and worse. We need to look at that and work out a way of moving forward and creating some kind of international agreement.
My particular passion is to ensure that those families are safeguarded against exploitation. However, I would not wish to push too hard on that matter: as my hon. Friend the Member for Erewash clearly stated, there have been only two recorded cases of surrogates changing their mind in the past 30 years, but thousands of surrogates who, because they have enjoyed carrying a child for somebody else, have happily given the child over and helped the family to have another child. That is important, and I would not wish to scaremonger. However, it is incredibly important to me—as it is to my hon. Friends the Members for Erewash and for Watford—that surrogates are safeguarded and that the families who use surrogates are not exploited.
My hon. Friend the Member for Erewash raised the issue currently in the news of families who are being broken up, and she mentioned the case of the two children. Whoever is right or wrong, the reality is that the case has been a huge problem for the families and countries involved because there is no way of dealing with the situation or of identifying whether any law—rather than a moral and ethical code—has been broken. The issue needs to be looked at, and I support my hon. Friend’s wonderful campaign for some kind of international agreement on surrogacy.
I also want to make a plea to the Minister on parentage. At the moment, the surrogate and her husband are considered to be the child’s parents. That leads to the problem of statelessness that we have mentioned and the problem that my hon. Friend the Member for Watford raised concerning his constituents, where one parent was kept separate from the family for many months—in some cases, no doubt, it is for years. We need to tackle that, as it has a detrimental effect on our constituents and our society. I congratulate my hon. Friend the Member for Erewash on her wonderful campaign, and I thank her for raising the matter in the House.
Sir Edward Leigh (in the Chair)
Order. I will call the hon. Lady, but she did miss most of the opening speech. I am sure she will want to apologise, although I am also sure that there is a good reason why she was late.
Julie Hilling (Bolton West) (Lab)
I am grateful for being called in the debate. Of course I give my full apologies for missing a great deal of the speech by the hon. Member for Erewash (Jessica Lee). I congratulate her on securing a debate on this important issue.
I want briefly to tell the story of a wonderful surrogate family in my constituency. Members might remember that I have talked quite a lot about Kiran and Bina Salvi because, sadly, they got caught up in the passport debacle. They had also been trying for a baby for 12 years. They went through all the normal tests and goodness knows how many rounds of in vitro fertilisation until, in the end, the doctors said they had to stop because it was damaging Bina’s health. They had had years of IVF and years of terrible disappointment every time the pregnancy did not work out.
The couple considered adoption, but the problem they then had was one that many couples have: by the time people have gone through all those years of trying, they are often considered too old to adopt a baby, so they are really in a cleft stick. The Salvis did much research and eventually took the brave decision to use a world-renowned specialist surrogacy clinic in India. They had five attempts at surrogacy, and their wonderful surrogate mum eventually became pregnant with their baby. On 3 March, they had a beautiful boy and girl—and they are beautiful; I went to visit them, and it was a proud moment to see them.
The babies were extremely underweight when they were born—they were little more than 2 lb. They were then stuck for four months in a hotel room in India with no passports, and they got more and more distressed. Spending the first four months of your life in a hotel room is no joy for anybody. The couple were also frightened about malaria and the rainy season. In addition, of course, it was not a four-star hotel, but the kind of hotel the couple could afford to stay in for that long.
The Salvis were with many other couples from the UK who were caught up in the same situation. They saw, however, that couples from other countries went through a much quicker process. Within a couple of weeks, couples from America and Canada were back at home with their babies. I therefore absolutely support the call for an international agreement on this issue.
Getting citizenship was extremely quick and easy for the Salvis, and the children were British citizens within two weeks. However, there was a difficulty. Rightly, the Indian Government require an exit visa for any children leaving the country, but because the couple’s children could not get passports, they could not get an exit visa. The couple had to go to New Delhi to sign more documents—something that they were not aware of in the first instance.
That shows the problems we have. The situation was probably compounded because we had closed the passport office in Hong Kong, which would normally have dealt with the issue. The office in the UK did not know how to deal with such cases, and that compounded the problem for the Salvis. We need to make sure we have experts in our passport offices in the UK who can deal rapidly with these cases and understand their intricacies. Eventually, however, the family got the passports and returned home.
The other point I want to raise is about the benefits to the surrogate parents. In this case, they gave the precious gift of life. The Indian mum was so pleased to have been able to help the Salvis, and the two couples are still in close contact. However, the surrogacy also gave the Indian couple a real lift in their lives, and they managed to start two businesses on the basis of surrogacy. Giving the gift of life, and the financial benefit from it, therefore fundamentally changed their life and that of their family.
There are strict rules in India about the number of cycles of surrogacy people can have, but the rules are not necessarily the same in other countries. Any international agreement therefore needs to make it clear how many rounds of surrogacy there can be, and to guarantee the health of the surrogate mother and the babies born to her.
I absolutely agree that we need international agreements, so that parents who seek surrogacy understand the rules that are in place and are not held up in the country where the children are born and so that surrogates are not exploited in their home countries. We also need to examine surrogacy in this country to see whether we should have different rules to allow payments to be made for surrogacy, rather than the deals we have at the moment.
Many thousands of would-be parents are suffering badly because they cannot have children. They see their friends around them having children, and becoming parents themselves becomes their life goal. I think we can all share their pain, and anything we can do to assist them will be really important. Again, I congratulate the hon. Member for Erewash on raising this important issue.
Andrew Gwynne (Denton and Reddish) (Lab)
It is a pleasure to serve under your chairmanship, Sir Edward. I congratulate the hon. Member for Erewash (Jessica Lee) on choosing this interesting and important subject for a Westminster Hall debate. She put the case eloquently, sensitively and sensibly.
It is some decades since the main rules controlling surrogacy were put in place, and it is no exaggeration to say that they are a product of their time. Although there has been welcome progress on some aspects of surrogacy—for example, provision for adoption leave and pay for intended surrogate parents was included in the Children and Families Act 2014—a more fundamental examination of our position on surrogacy is needed, so the debate is extremely timely.
Of course, it is important to say at the outset that the health and well-being of any children born as a result of surrogacy arrangements must be at the heart of our concerns. As the hon. Member for Stevenage (Stephen McPartland) rightly said, that must sit firmly alongside the need to prevent exploitation of any of those involved in surrogacy, but the welfare of children must be paramount.
Aspects of the current situation can certainly be described as troubling. The growth of the internet continues to accelerate, and it takes only a few keystrokes to bring up a search engine web page with paid advertising for commercial surrogacy services abroad. The revelation that Britain may account for as many as 1,000 surrogate births in India every year is shocking enough, but when it is contrasted with the low numbers known to be taking place in Britain, it is clear that the situation requires serious review. There is a clear need for further research to establish the size of the international trade in surrogacy and to enable the development of a deeper understanding of how it functions.
It is not just the hon. Member for Watford (Richard Harrington) and my hon. Friend the Member for Bolton West (Julie Hilling) who have experienced tricky constituency casework on this issue. Earlier this year, she and I had almost identical cases, which we discussed. The legal issues got very tricky, and that was compounded by the passport fiasco. Thankfully, my case, like hers, has been satisfactorily resolved for the parents and the child. However, the cases were tricky, which highlights just how difficult some of these surrogacy arrangements can be. While that can be compounded by factors outside the control of those involved, the arrangements in India were incredibly tricky and caused the parents a lot of heartache and trauma, as well as a lot of unex—I am trying to think of the word. I have lost my train of thought.
Andrew Gwynne
Thank you, Sir Edward—unexpected expense. That placed the family in severe difficulties while they were in India.
Although our legislative framework might restrict exploitation in connection with surrogacy in the UK, it might simply be shipping exploitation abroad, where there are undoubted commercial opportunities to make large amounts from the exploitation of poor women. In the past few days the case has been reported of an Australian couple who are said to have abandoned one of two surrogate twin babies born in India, taking only one of them back with them. That amply demonstrates the need for international action. I hope that today’s debate will highlight the need for consideration of an international convention on surrogacy, so that we can put an end to such unethical and immoral practices.
The international dimension is important, but inevitably the question arises of how we might alter the situation in the UK to enable aspiring parents to explore the option of surrogacy in a way that protects all parties and puts children’s interests first. I suggest that we consider three things. The first is an assessment of the scale of the need for surrogacy and whether we can reduce that need through action to reduce the incidence of infertility in women. The second is an assessment of the extent of the international trade in surrogacy; on international health questions, we are much more effective if we operate in concert with other countries. The World Health Organisation appears to take little interest at present in surrogate motherhood issues, and perhaps the United Kingdom, as a member of its executive board, should take a lead in raising the issue and ensuring that it is included in the WHO programme of work. I should be interested to hear how the Minister can take that matter forward. The third thing to consider is a review of UK legislation on surrogate motherhood. Difficult issues will inevitably need to be considered, particularly the potential involvement of commercial interests in arranging surrogacy. The hon. Member for Erewash set out a possible framework, and that should be considered carefully. I am interested to hear the Minister’s response to the important points she made.
The current position is clearly unsatisfactory and in need of attention. If the population is to continue to make use of surrogate motherhood to deal with the problem of infertility, it would surely be better for the processes to take place within an ordered, regulated system here, than in a system that is not ordered, halfway round the world. It would be better for the parents, the surrogate mother and the child. The comments and suggestions made by the hon. Member for Erewash were compelling. She is right to raise the question of how to strengthen our domestic law to protect all concerned. This is a sensitive area that needs to be considered carefully, but there is a need for change at home as well as internationally, and I look to the Minister to give direction, answer questions and consider the possible solutions that Members have suggested. Thank you, Sir Edward, for filling the gaps that were left in my speech when, sadly, my train of thought left my brain.
The Parliamentary Under-Secretary of State for Health (Jane Ellison)
It is a pleasure to serve under your chairmanship, Sir Edward. We have had a thoughtful debate, which is no surprise given the expertise of my hon. Friend the Member for Erewash (Jessica Lee). I thank her for raising this important subject, and other hon. Members and the shadow Minister for their speeches. This occasion makes me even sadder that my hon. Friend is leaving Parliament at the general election; it is an ample illustration of the fact that Parliament’s loss will be the family Bar’s gain. My hon. Friend has shown that she is good and knowledgeable lawyer, and I am conscious that I am not a lawyer of any description, let alone a good one. I hope that she will therefore understand that I may want to respond on some of the more complex legal issues after the debate. There is a significant cross-Government interest in the area, with some issues falling within the Home Office’s area of responsibility, and others in that of the Ministry of Justice.
Surrogacy is, obviously, an emotive issue, and it is good that we have had such a calm debate. It is recognised by all that it is not an easy area in which to make progress, but a case has been made that the time has come to examine it, not least because of the complexity of the international situation. My comments are partly about where we may begin to direct our attention, and to caution against the idea that it will be easy to make significant progress, particularly internationally. A cursory look at the different regimes in the world, and at different countries’ approaches, would give rise to caution.
Surrogacy is a way forward for couples who, for any of a range of reasons, cannot have their own children. Hon. Members have made the point that these days new families can be formed that we would not even have thought about a few decades ago. Happily, new and different shapes of family are emerging all the time, and the issue will become more relevant, more rapidly, to more people than we perhaps anticipated 20 years ago. We always recommend that ideally surrogacy should take place in the UK, with sound legal advice and the use of licensed premises, for all the reasons that have been shown in the debate. However, we recognise that that will not always happen and that, for some individuals and couples, achieving a much-wanted family will involve going abroad and taking one of a range of approaches.
The law is aimed at striking a balance in protecting the rights of the surrogate mother and her family, the child and the commissioning couple. The overall aim is the safeguarding of the child’s welfare, which should be kept as a paramount consideration. There is consensus about that, I think. The two ways in which that happens in the UK legal framework are by criminalising commercial surrogacy and by facilitating the transfer of legal parenthood to the natural commissioning parents. My hon. Friend the Member for Erewash is right to say that that sometimes proves difficult.
The Surrogacy Arrangements Act 1985 makes commercial surrogacy, including negotiating and advertising for surrogacy, a criminal offence, although individuals and not-for-profit organisations can make those arrangements without offending under the Act. However, as my hon. Friend pointed out, a surrogacy arrangement is not legally enforceable, and any prosecution requires the relevant consent of the Director of Public Prosecutions. For those parents who use their own sperm and/or eggs in a surrogacy arrangement, sections 54 to 55 of the Human Fertilisation and Embryology Act 2008 enable legal parenthood to be transferred to the commissioning parents by way of a parental order and the rights of the surrogate and any husband or partner of hers to be extinguished for ever. Section 54 sets out the criteria that must be fulfilled for a couple to apply for a parental order. Recent cases that have been mentioned show how the courts have interpreted the legislation to ensure that the long-term welfare needs of the children are met. The Government, like my hon. Friend, are still reflecting on the interesting order made in a recent judgment. I understand that the judge returned to the parliamentary debates on the legislation before issuing the judgment that Parliament did not intend that going one day over the limit should prove such a barrier.
International surrogacy is an even more difficult matter, as the debate has showed. We are well aware that some UK couples choose to travel abroad for surrogacy, and the reasons why that trend is likely to accelerate—and probably already has done in recent years—have been explained. However, fundamental issues arise for the family and child when they return to the UK. The law does not provide for the automatic recognition of an overseas surrogacy arrangement, and as we have heard, there is no international agreement on surrogacy arrangements, or harmonisation of the law and practices on surrogacy overseas. We would take the welfare of the child to be paramount. The Government have an obligation to protect children from abduction or trafficking and not to seem to sanction any situation or arrangements that might too easily tip into that. We must proceed cautiously.
The UK legislative framework for surrogacy has some international application, in the sense that a surrogate for the purposes of obtaining a parental order is defined as a woman anywhere in the UK or elsewhere. Applicants for a parental order need only be domiciled in the UK—not habitually resident here. However, as my hon. Friend the Member for Erewash pointed out, there is no harmonisation of that.
At the 2014 general affairs council meeting of The Hague conference on private international law, member states considered issues to do with legal parentage, the legal status of children and international surrogacy. In view of the sensitivity of these matters, the conference agreed at its meeting in March 2015 to make a decision on the feasibility of undertaking further work in these areas. The Hague conference is probably the best placed international body to consider what is achievable, but it should be noted that there is considerable divergence in the attitude and approach of different countries. I suspect that this is not something on which the World Health Organisation would take the lead, as the shadow Minister suggested it should, but we will look at the matter to see whether that is the case. Our feeling is that The Hague conference is more likely to make progress in this area, not least because I understand that it made progress on adoption.
We do not have precise figures on exactly how many people who are domiciled in the UK or are British citizens use surrogacy services at home or abroad, nor how many go on to apply for a parental order. There is no obligation to obtain a parental order, but people in the UK are clearly advised and encouraged to do so to achieve a recognisable transfer of parenthood. That order provides legal certainty for the commissioning parents and the child, and there are clearly psychological benefits in linking the child’s identity with that of his or her parents. There are also practical reasons—some were illustrated by hon. Members today—for ensuring that those caring for the child are able to do so legally without recourse to surrogate parents.
When an application for a parental order has been made, the Children and Family Court Advisory and Support Service is asked to report to and advise the court on the desirability of granting the order. I am advised by Ministry of Justice that 675 parental order applications were made to the court in England and Wales in 2013-14 and that 302 applications were made in the first two quarters of 2014. However, as many hon. Members have said, including my hon. Friend the Member for Erewash, anecdotal evidence, which we accept, suggests that many more surrogate arrangements take place. That illustrates that we can do more work to emphasise to all commissioning parents the benefits of a parental order.
As my hon. Friend described, surrogacy is evolving. I accept that she feels strongly—she made the case eloquently—that it should evolve much more quickly and that the time has come for proper momentum in looking at some of the provisions. We are considering the implications of recent judgments and the various issues that cross Departments. We are evaluating these matters while reflecting on our approach to surrogacy more generally. The Department of Health is working with other Departments that are involved with international surrogacy issues and is looking at ways to improve the information and guidance available to potential commissioning parents, so that they are fully aware of the processes involved, the potential pitfalls during their journey and the benefits of good legal advice, and not just from my hon. Friend. I note her generosity in providing support to another hon. Member in that regard.
As we have heard, there are pitfalls in the difficult journey to much-wanted parenthood and there are benefits to parental orders. That has been amply illustrated, which has been helpful for me because I have not previously responded to a debate on this subject during this Parliament. It is good that we have had this chance to hear about individual cases, which hon. Members know often illustrate a wider legal point more movingly and resonantly that just looking at the principle of the law.
The Government have no plans to make the commercialisation of surrogacy lawful in the UK; I do not believe that would have the support of the majority of people in this country. I do not believe there is agreement within the surrogacy stakeholder community about the approach to take in that regard.
My hon. Friend raised the issue of pre-birth contracts and immediate birth certificates for commissioning parents. That would amount to pre-birth provisions and would go further than any UK Government—and, probably, the majority of other countries’ Governments—have felt comfortable with going. I recognise that in the past people have been cautious and a little concerned about creating a commercial framework for surrogate babies while reducing the scope to consider the child’s welfare. My hon. Friend made the case thoroughly, and we will reflect on that and the fact that she and other hon. Members believe that it is possible to exaggerate the concerns and to get the balance between the some of the benefits wrong.
My hon. Friend suggested that the Government should introduce some form of regulation into the sector. That would, of course, involve significant changes in the law and would give rise to many questions to consider. Today’s debate has given us plenty to reflect on, not least the point that we all want to safeguard the rights and future welfare of children born under these arrangements.
Surrogacy is highly complex, and I suspect that in a wider debate outside this calm debating Chamber it would be slightly more contentious. It is an evolving area that society requires to evolve quickly, both legally and ethically. The current legislation seeks to strike the difficult balance between what is right for parents and children, but hon. Members have made the case today that they do not believe that that balance is being achieved, and I hear that. We recognise that there is scope for improving information—we could perhaps do that more quickly than changing the law for those considering surrogacy to clarify the position and to ensure that the child’s welfare is safeguarded.
Bringing this important matter to the attention of the House and my hon. Friend’s expertise show that there is a case for looking more widely at it and for opening a wider dialogue. I shall be interested to hear the responses she receives after this debate. People with a particular interest in a matter often cannot attend our debates, but may express a view afterwards. I shall be interested to hear about the interest in the debate throughout the House. It is obvious from the shadow Minister’s response that there is a cross-party appetite for looking at the matter and a feeling that we must ensure that our laws reflect the modern world. That is on the record and noted.
I mentioned the cross-Government working group on surrogacy. Perhaps the next step following this debate is to invite my hon. Friend the Member for Erewash to address that group and to make her points to it. I would be happy to facilitate that and afterwards to see where the debate and evolving discussion might go. She has made her case eloquently, and I thank her for that.