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Human Fertilisation and Embryology Bill [HL]

moved Amendment No. 141A: 141A: Clause 35, page 36, line 23, leave out subsection (2) The noble Earl said: My Lords, we come to an issue that has not previously been raised in our debates—surrogacy. Surrogate parenthood is a practice that has grown in popularity in a number of countries around the world in recent years. Canada, Ukraine and California are examples of jurisdictions in which legislation is in place that could be seen as actively encouraging surrogacy. The usual arrangement is that the male partner in a marriage or heterosexual relationship or one partner in a male single-sex relationship will provide the sperm that will fertilise the egg of a donor and the resulting embryo will be implanted into the carrying mother, who is usually described as a ““surrogate mother”” or ““gestational carrier””. In other cases, the female commissioning parent may be the genetic parent; in yet others, both commissioning parents are the genetic parents. In the three jurisdictions that I mentioned, surrogacy contracts have legal effect. Contracts will be entered into between the egg donor and the commissioning parents, and between the carrying mother and her husband, if she has one, and the commissioning parents, which provide that the child will be delivered into their custody on birth and that the egg donor and carrying mother, and her husband, relinquish all rights. The court then makes an order declaring the commissioning parents to be the legal parents and the child is registered as the child of the commissioning parents. In English law, contracts of this kind have no force or effect, nor do any orders or registrations that are made pursuant to them. Section 27 of the 1990 Act provides that, if a child is being carried by a woman who has been artificially inseminated or has had introduced into her eggs and sperm or an embryo, that woman is to be treated as the mother for all purposes; no other person is to be regarded as the mother, whether or not she is genetically related to the child, and wherever this takes place. That provision gives the carrying woman parental status and parental responsibility, which can be lost only through a parental order or through adoption. Under Section 28(2), reproduced in this Bill in Clause 35, if a woman who is a party to a marriage is carrying a child as the result of the placing in her of eggs and sperm or an embryo, or by artificial insemination, and the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the treatment by which she became pregnant. This is irrespective of the fact that the husband may have consented to his wife carrying the baby under a surrogacy arrangement. The genetic father is to be, "““treated in law as not being the father for any purpose””." It is clear from the House of Lords debates in 1990 that Section 28(2) was intended to cover the position of conventional donor insemination, when a couple want to create a family for themselves and the sperm donor wishes nothing to do with the child. There was only a passing reference to surrogacy in the debates, when it was said that there would not be many such cases and that the commissioning parents would have to apply to adopt. However, no thought appears to have been given to the international dimension. In a case such as the one that I described, the effect of Section 28(2) in English law is that the child will always be the child of the carrying mother and of her husband, if she is married. I repeat that this is translated into this Bill in Clause 35. In international law, where there is a court order and registration of the surrogacy arrangement, the child is legally the child of the commissioning parents in the state of origin. Thus, if a child is conceived and born abroad as a result of a surrogacy arrangement, registered as the child of the commissioning parents in that jurisdiction and subsequently brought into this country, significant problems arise. The child will be, in effect, parentless and stateless. In the state of origin he is the child of the commissioning parents, while in our law he is the child of the carrying mother and her husband; the commissioning parents have no status. If the commissioning parents happen to be British, the child would have no right to British citizenship and would technically be an illegal immigrant if brought here. On the other hand, if the child were brought here, it would be impossible for the court to send him back to the state of origin, because the surrogate mother there has no parental rights. There are only two solutions for the commissioning parents under current law: a private fostering arrangement or a parental order. Private fostering entails local authority supervision, with its attendant inquiries and monitoring. To qualify for a parental order, an applicant has to meet a number of clear conditions, one of which is that the application has to be made within six months of the birth. If this condition is not met, the commissioning parents would have only one other option in order to acquire the legal status of parents, which is to apply for an adoption order. However, that process takes at least three years and the outcome is by no means guaranteed. Let us remember that this is a situation where the man who has commissioned the child is also that child’s genetic father, yet in law they are treated as being unrelated. The anomaly, however, is that if the surrogate mother is not married, most of these problems do not arise. I am talking here about a surrogate mother who is overseas. In such a case, the genetic father is the natural putative father of the child and the child is treated as his illegitimate child. Thus the father is able to apply for parental responsibility, which the carrying mother can also grant by agreement; he can also apply, as of right, for Section 8 Children Act orders. He does not have to notify the local authority if the child is living with him; he can apply to adopt after the child has been living with him for 10 weeks, or for six months if adopting with a partner; and the child is entitled to British citizenship, succession rights and the rights that follow from being his child for the purpose of prohibited degrees of relationships. None of those things applies if the surrogate mother is married. A big question arises as to whether our law and this Bill are human rights compliant. In my opinion—I say this having received advice from a QC in this field—there are strong arguments that, in its effect in surrogacy cases, Section 28(2) of the 1990 Act and, therefore, Clause 35 of this Bill are in breach of the rights to private and family life, particularly in respect of immigration and in relation to both child and genetic parent, and probably to the genetic parent’s spouse or partner as well. There may be cases where a parental order is not available—for instance, where consent is withdrawn—in which case the lack of ability to apply for, or be granted, parental responsibility will create a serious problem, particularly in the context of the period that must elapse before an adoption application can be commenced. The fact that the child born to the unmarried surrogate has a wholly different status and the father of such a child has radically different rights and responsibilities seems to me to be anomalous. I have covered only in outline the various ramifications of this issue and, rather than detaining the House further, I simply ask the Minister to give an undertaking to take these matters away and examine them carefully prior to Third Reading. They need to be properly grappled with. I beg to move.