Surrogacy

Jane Ellison Excerpts

Tuesday 14th October 2014 Westminster Hall

[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.