Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Lord O'Shaughnessy Excerpts

Wednesday 12th December 2018 Grand Committee

Moved by

[Lord O’Shaughnessy]

That the Grand Committee do consider the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 and the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018.

Relevant document: 14th Report from the Joint Committee on Human Rights

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)]

My Lords, by way of background, parental orders are an important mechanism that transfer the legal parenthood of a child born through a surrogacy arrangement from the surrogate and her partner, if she has one, to the intended parents. The effect of such an order is that the child born to the surrogate is treated in law as the child of the applicants for the parental order and that any parental rights of the surrogate and her partner are extinguished. This confers legal certainty of parenthood, parental responsibility and decision-making on behalf of the child to the intended parents. As noble Lords will be well aware, parental orders were introduced for married heterosexual couples only as part of the Human Fertilisation and Embryology Act 1990. This was extended by the 2008 Act to same-sex couples, civil partners and couples in long-term relationships where the relevant criteria were satisfied.

I am sure we all agree that surrogacy has an important role to play in our society, helping to create much-wanted families where that might otherwise not be possible. It enables the provision of an altruistic gift to people who are not able to have a child themselves and can help people to have their own genetically related children. The UK Government recognise the value of this in the 21st century, where family structures, attitudes and lifestyles are increasingly diverse. We have also recognised that the existing legislative framework has not kept pace with this social change and have therefore asked the Law Commission to review all surrogacy-related law and make proposals for improvement as part of a three-year project.

In the meantime, a more immediate piece of legal reform needs to be addressed. As noble Lords know, in 2015 there was a legal challenge by a father who had a child through a surrogacy arrangement in the USA who could not apply for a parental order because he was single. The High Court found that the Act was in breach of Article 14 of the European Convention on Human Rights combined with Article 8. In May 2016, the court made a declaration of incompatibility. The declaration related to the lack of any provision enabling a person in the position of the applicant, who was not in a long-term relationship, to apply for a parental order. The Government of the day made a commitment to rectify the incompatibility by means of a remedial order made under the power in Section 10 of the Human Rights Act 1998. The order inserts a new Section 54A into the Human Fertilisation and Embryology Act 2008 to provide for and set out the criteria for parental order applications from one applicant. The new section largely mirrors Section 54 of the 2008 Act, which provides for applications from couples.

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We know from the past that Parliament has to consider this sort of legislation very carefully indeed. We know that we are not looking at a short timeframe for the review of the surrogacy laws that needs to be undertaken. The Minister needs to assure us that the department will be keeping a watchful eye on this, because I think we might need to come back and deal with particular issues that we have not even imagined right now. I support these orders.

[Lord O’Shaughnessy]

I am very grateful to all noble Lords who have spoken. One of the great joys of working in this House is that we are privileged to have access to such expertise, be it scientific, policy or legislative. We have had a very good, if short, debate in which there were some interesting questions which I shall try to answer. The noble Lord, Lord Winston, made a point about tracing the genetic parents in the case of a donated gamete. I shall read out what it says in my pack to make sure that I get the wording right and then I am going to make an addendum which I think is also correct.

If a child is conceived via an HFEA-licensed clinic with donor gametes, it may be able to access information about the donor in line with the responsibility of the clinic to provide information under the HFE Act, but this would depend on the parents informing the child of the circumstances of their birth. Of course, that would be so that the child was aware that they could ask, but at the point at which they became aware, via their parents or anyone else, they would then have a right to that information. I think the point the noble Lord made was that however the line goes to the genetic forebear, the child would have the right to pursue it. Of course, it would rely on the child being aware of the circumstances of their birth and so on, and we cannot force that on somebody, but they would be able to trace it.

[Lord Winston]

Does that mean that the birth certificate would be like a normal birth certificate under those circumstances?

[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.

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[Baroness Barker]

I am glad that over the years I have had to do my homework because I am now going to be in debates with the noble Lord, Lord Winston. I think that the issue is covered by the licensing of the clinics which are under an obligation to maintain a record if they are HFEA-licensed in this country. I believe that in certain jurisdictions abroad to which people go for surrogacy, notably California and Canada, clinics are similarly required to meet certain standards of record-keeping.

[Lord O’Shaughnessy]

That is absolutely right. It is fantastic to be able to bow to the wisdom of noble Lords. In effect, although this is a rather inadequate way of describing it, there is a paper trail of whether it is the surrogate parent—the original genetic donor, if there is one, that is different from the parent who subsequently gets the parental order—when that is done through licensed clinics. The child has a pre-existing right to pursue that information and they are able to do so, if they want to, when they become aware of the circumstances of their birth. I think I have got that right. The noble Baroness, Lady Barker, is nodding, which means I can be confident.

I congratulate the noble Baroness on her tenacity in pursuing this issue and I congratulate other noble Lords as well. It has taken longer than it should have done to make this remedial order; I can only reflect on how much has happened in the last two and half years, which may be some of the reason behind that. The department is very aware of the need to watch this space. There are court cases going on. Clearly it would be inappropriate for me to comment specifically on them but, as the noble Viscount, Lord Craigavon, pointed out, thorny and difficult cases will continue to emerge and we need to deal with them as they arise if they have policy implications. We also need to ensure that we keep up the impetus through the Law Commission review, which I understand will be two years of inquiry and then a year of drafting legislation. That is why it will take three years; these things have a natural pace to them. The critical point is that at the end of the process, the Government—as the noble Baroness, Lady Thornton, pointed out, whoever is in government at that point—should then be in a position to take that legislation forward. One would hope that if the Law Commission has done its work, that is something on which there is a pre-existing consensus and we can all move forward.

I am incredibly grateful to noble Lords for their wisdom and sagacity. This has been a very high-quality debate. I will provide the specific clarification to the noble Lord, Lord Winston, and circulate it to other noble Lords who have taken part in the debate. I thank them once again for their contributions.

Motions agreed.