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Human Fertilisation and Embryology Bill [HL]

My Lords, I, too, congratulate the noble Earl on his probing of the law on surrogacy. It is a complex area, even if no international element is involved. We advise couples who are contemplating surrogacy to take expert legal advice at an early stage, certainly before deciding whether to proceed. That would be the case whether the surrogacy were to be in the UK or elsewhere. A range of complex issues affects the law on surrogacy—whose gametes will be used, whether the surrogate is married, the country where the surrogacy takes place, the laws in that country in relation to parenthood following surrogacy and the recognition of those laws in this country. It is not an arrangement that should be undertaken lightly. In the same way, I do not want to attempt to answer the points raised by the noble Earl without reflecting carefully on them and getting proper guidance. However, I will briefly describe the clauses to which the noble Earl refers. The purpose of Clause 35(2) is to make it clear that, where a married couple is treated with donor gametes, whether the treatment is in the United Kingdom or abroad, the husband of the woman who is treated is the father of the child. That applies unless it is shown that he did not consent to that treatment. This simple provision recognises the parenthood of married men when their wives have babies and donated gametes are used to conceive the child. For the provision to have effect, the conception must involve assisted conception. Clause 35 will not apply if the conception is as a result of sexual intercourse. The provision is there to make it clear that, if a married woman conceives a child through the use of donor gametes in whatever circumstances, her husband is the father as long as he consented to the use of the donor gametes. Clause 54 is about the conditions that must apply before a parental order, which is a fast-track adoption, can be given by a court. Parental orders are given in very specific circumstances to transfer the parenthood of a child to the commissioning couple following a surrogacy arrangement. They are a form of light-touch adoption, in terms of the processes that will be applied, because one of the commissioning parents must be a genetic parent of the child. The social services are alerted to cases of surrogacy but, for the parental order to be given, the lengthy process of determining the suitability of various couples for the adoption of the child will not be engaged because one or both of the new parents will be a biological parent. The Bill proposes that the eligibility for parental orders be extended so that civil partners and unmarried couples may apply rather than just married couples. For the order to be given, either or both of the applicants must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man. The amendment seeks to remove this provision. The noble Earl raises important potential problems relating to children born of surrogate mothers who are married and living overseas. He cited what could be strong arguments that Clause 35 is in breach of human rights law. I am certainly not in a position to respond today, but I will take the issue away and come back at Third Reading. Therefore, I ask the noble Earl to withdraw the amendment at this stage.