Surrogacy

Baroness Chisholm of Owlpen Excerpts

Wednesday 14th December 2016 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

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.