Surrogacy

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 14th December 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

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processes and, if ever it was desirable, surely it is so here, with regard to reshaping—as we now should—our obviously outdated surrogacy law.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.