Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Debate between Lord Winston and Baroness Barker

Wednesday 12th December 2018 Grand Committee

[Lord Winston (Lab)]

My Lords, forgive me for a brief intervention. I do not have any problems at all with the basic notion of what is in front of us. It is possible that I was the first person to do a surrogacy agreement using IVF, so I have a certain amount of background in this rather murky subject.

One thing that slightly concerns me is the issue of paternity or maternity genetically, because we now have a situation where children can normally trace their genetic parent. That is on the birth certificate. Here we have a slightly odd situation. For example, particularly with a gay or lesbian couple, or where someone has not only had their uterus but their ovaries removed, someone may end up receiving a donor egg which is then implanted into the surrogate mother after fertilisation. So an embryo could be put into a surrogate mother who is happy with that, but it is not genetically her embryo.

I am just trying to raise the issue of clarity. Given that Parliament in its wisdom decided that people should be able to trace their genetic mothers, someone who had given an egg in that situation could suddenly be presented with a child they did not know they had, even though their own treatment had failed 20 years or earlier. When the Minister wraps this up, can he provide some clarity on what would happen, because there is human rights issue both ways here?

[Baroness Barker (LD)]

My Lords, I thank the Minister for introducing this debate in the way that he did and giving the background to the instruments before us today. I should declare that I am a member of the All-Party Parliamentary Group on Surrogacy. I have a long-standing interest, fuelled by many a night sitting listening to the noble Lord, Lord Winston, as we went through various bits of legislation but principally by the work done by Surrogacy UK in 2016 when it produced a report. There was a debate in December of that year. Baroness Warnock was no longer a Member of your Lordships’ House, but the noble and learned Lord, Lord Mackay of Clashfern, was. Those of us who had been involved in legislation on this matter from the beginning in the 1980s accepted that the overall legislative framework we now have is not really fit for purpose, not least because of the many scientific advances that have happened in the intervening years. As the noble and learned Lord, Lord Mackay, observed in that debate in 2016, there are now many more ways in which families, as well as children, are created.

The Minister was right that the original stimulus for the legislation was the case of a man who in 2015 had a child by surrogacy abroad, brought the child back and found that the child’s status was incompatible with our law at the time, which stated that parental orders could be made only in respect of a couple. That was two and a half years ago. In the meantime, others have found themselves in similar limbo. The courts have had to make what are essentially temporary orders. Those orders are above all for the welfare of a child: a child is being cared for by somebody who is not their legal parent and has no legal responsibility for them. We should not lose sight of that.

This measure is a welcome step forward which offers a degree of certainty not only to individual parents or intended parents who find themselves in this position but to the children. I am pleased that the Law Commission is now undertaking an extensive review of the legislation. The All-Party Parliamentary Group on Surrogacy is conducting its own hearings on the matter. For just a small all-party group, the hearings have been extremely interesting. We have had a huge number of people give evidence, some with very conflicting views. I think that we will end up with an interesting report that feeds into that work. My guess is that the Law Commission will take about two years to produce a report.

My reason for mentioning all that is that time ticks by for individuals as we debate these matters. I do not suggest for a moment that we should do anything in a rush, but, at the same time, it is incumbent on us to deal with some matters urgently, because to do so is in the interest of individuals.

There are some ways in which a single person applying for a parental order will be still be left outside these remedial orders. I understand that a case is before the courts at the moment of a woman whose relationship with the biological father of a child has broken down. She is now in the position of being a single person who has no biological relationship with the child but nevertheless wishes to have parental responsibility. Another tragic case is before the courts in which one member of a couple has died subsequent to the fertilisation process having taken place.

However long the Law Commission takes to do its work, which it should do extensively and thoroughly, I think that we will continue over the years to have a small number of cases that are intensely important both for intended parents and for children. It is therefore likely that we will find ourselves back in this House making more revisions of regulations of this kind before we get the comprehensive review of surrogacy law that we need so that practitioners, medics, intended parents and children all have a better understanding of where we should be legally in this day and age.

--- Later in debate ---

[Lord O’Shaughnessy]

Yes, because the court retains a copy of the original birth certificate. I am going to need to clarify this because it is tricky and there is a danger if I try to describe it now. I do not want to do that. I think the noble Lord is asking for clarification, but I am going to need to write to him, if he will accept that, to clarify the situation.

[Baroness Barker]

I hope I am going to be helpful. If I am right, I think that at the point at which a parental order is given, a new birth certificate is issued. That rather mirrors the procedure under adoption, which is the same. The point is that a child always has the right to find out their genetic history but they may not know the means of their birth. From all the things that I have listened to in this House, that makes them probably like a good 40% of people who were not adopted or the result of fertilisation but who have a different father from the one they thought they had; I do listen.

[Lord Winston]

I do not want to delay things, but surrogacy is a special situation because the child is developed in another uterus, so there are epigenetic factors which may act on that child’s development. We are now beginning to understand—for example, from the study that I am involved with in Singapore—that things which happen when the baby is in utero can affect cognitive development and other sorts of development later in life. It is therefore slightly different from a normal donated gamete in a usual IVF setting or simple artificial insemination. That is why I wondered whether there will be clarity about the exact nature of the bearing mother as opposed to the genetic mother, because that seems to be important. Is that recorded on the certificate?