Surrogacy

Viscount Craigavon Excerpts

Wednesday 14th December 2016 Lords Chamber

[Viscount Craigavon (CB)]

My Lords, we should be grateful to the noble Baroness, Lady Barker, for initiating this debate and taking the lead on this subject as she has done. As she said, the law relating to surrogacy is seriously out of date. My main message this evening is that the law needs urgent updating, and that we should very much hope that the Law Commission would be able to include this task in one of its current projects. Despite the deadline for submissions officially having closed at the end of October, I learned in its acknowledgement of my submission that it would nevertheless be able to monitor this debate.

I shall give some brief examples of things going wrong at the moment. We have stories, some documented in newspapers, of newborn babies being handed over in car parks. We have the increased use of social media and self-help leading to what might be called underground transactions, sometimes in closed online groups. We have the courts and judges having to—rightly—bend the law laid down in 1985, and now out of date, to allow deadlines, time limits and even expense limits to be breached, for the very good reason of putting the best interests of the child first. That might be good British pragmatism, but it is not normally how we think of our law working and it adds uncertainty for following future cases. We should not rely on the law to be reformed only in response to outrage at a certain type of train-crash situation or worse. Having mentioned all that, I should say that the present system can work satisfactorily and happily for many people, but it is the increasing number of bad experiences, especially for those driven abroad by uncertainties, that need to be addressed.

I want now to mention two recent, largely academic milestones by those who have wanted to bring together the voices and opinions in this field, to assist serious reform taking place on the basis of more accurate information and data. First, in November 2015 an academic working group produced the excellent publication Surrogacy in the UK: Myth Busting and Reform, which is contained in full in the very useful Lords Library briefing for this debate and is available online. To give some credit, I say that the working group was led by the lead writer, Dr Kirsty Horsey, an academic lawyer at Kent Law School at the University of Kent, with strong support from trustees of Surrogacy UK, which is a not-for-profit agency and provider of information and support, as well as Sarah Norcross, the director of the Progress Educational Trust. For those who might wonder, that organisation is my personal link to this subject and past connection to related fields, going back to its foundation at the time of the HFE Bills in this House in the 1990s. It is good to see listening to this debate the noble and learned Lord, Lord Mackay of Clashfern, who took some of those Bills through this House. I know that he is interested in how the law will progress.

The report to which I referred supported the existing altruistic, compensatory model for surrogacy. One of its major recommendations was that much of the legal work that now takes considerable time after birth could be done before birth, so that the intended parents could register the birth and assume legal responsibility right from the start. Some of the existing legal time limits, already being breached, could be relaxed. The systematic collecting of information and data—currently lacking—would provide the basis for sound future decisions.

I come to the second recent milestone. As the noble Baroness, Lady Barker, mentioned, in May this year the aforementioned team convened an all-day conference in London, at which both she and I were present. It was a chance for all parts of this interest group to meet, debate and interact, as well as to hear from the varied experience of some surrogate mothers and to some extent, so far as possible, to arrive at a consensus for changing and updating the law. Again the consensus was in support of the present altruistic, compensatory model, but there was discussion about the extent of reasonable expenses, currently allowed under the law. Also, there was wide consensus that legal parentage should be granted to the intended parents before birth. As my time in this debate is a bit short, I shall just refer noble Lords to the report of the proceedings of that conference, which will be published by the end of this year in a special edition of the Journal of Law, Medicine & Ethics.

I want to mention one of my most remarkable Cross-Bench colleagues, who is listening next to me, the noble Baroness, Lady Lane-Fox, who has had her own recent known experience of surrogacy. She has asked me to say that she is happy to lend her full support to a reference to the Law Commission—a powerful endorsement.

As I have been saying, we hope that the Law Commission can look favourably on this subject as one of its projects. Given the timescale before anything might be turned into legislation, I hope that the Department of Health can produce, and keep up to date, guidelines for best practice in this field both for the medical profession and clinics and, quite separately, for the lay public wanting to know what their options are. Could the Minister give a commitment and timescale to that, and that the guidelines would be updated?

Finally and very briefly, I say that it would be helpful if the Minister could deal with one outstanding legal matter, which has already been referred to—the declaration of incompatibility in the High Court Family Division in May. Can the Government say how and how soon they will rectify what they are required to do under that judgment?