Draft Human Fertilisation and Emryology Act 2008 (Remedial) Order 2018 Draft Human Fertilisation and Emryology (Parental Orders) Regulations 2018

Jackie Doyle-Price Excerpts

Tuesday 18th December 2018 General Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Jackie Doyle-Price)]

I beg to move,

That the Committee has considered the draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018.

[The Chair]

With this it will be convenient to consider the draft Human Fertilisation and Embryology (Parental Orders) Regulations 2018.

[Jackie Doyle-Price]

It is a pleasure to serve under your chairmanship, Mr Evans, and to move the motion. 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 a parental 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. That confers legal certainty of parenthood, parental responsibility and decision making on behalf of the child to the intended parents. It is clearly a key legal underpinning of the new arrangements for surrogacy.

When the Human Fertilisation and Embryology Act 1990 laid down the legal foundations, parental orders were introduced for married heterosexual couples only. In the Human Fertilisation and Embryology Act 2008, that was extended to same-sex couples, civil partners and couples in long-term relationships where the relevant criteria were satisfied.

In 2015, there was a legal challenge by a father who had a child through a surrogacy arrangement in the USA. He could not apply for a parental order because he was single. The High Court found that the 2008 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—someone not in a long-term relationship—to apply for a parental order. The order addresses that case by removing any discrimination against single people being able to exercise their rights under the 2008 Act.

The Government made a commitment to rectify the incompatibility as soon as possible. That is why we are here today. I have been determined to see this through and get the law changed. I pay tribute to my hon. Friends the Members for East Renfrewshire and for Brigg and Goole, who have been my conscience in ensuring that we bring the arrangements to the House as soon as possible.

I think all members of the Committee would recognise that since surrogacy was first introduced back in the 1980s, it has become increasingly common as a method for childless couples and individuals to address their wish to have a family. As such arrangements become more commonplace, it is important that we in Parliament ensure that the legal provisions underpinning them are safe for the child and for everyone whose rights need to be respected. The proposals have been considered by the Joint Committee on Human Rights. After its extensive and rigorous scrutiny, we have amended the order to get it into the shape that it is in now.

The regulations replace the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 as a consequence of the changes made by the order that we are considering. The regulations will set the legal framework for parental orders by making provision for matters such as the legal status of a person who is the subject of a parental order, how the register functions and the factors that a court must take into account when considering an application for a parental order. It is worth emphasising that the issuing of a parental order still very much relies on the decision of the courts.

The regulations operate by applying, with modifications, adoption legislation to parental orders. For example, the regulations contain the requirement for the relevant Registrar General to hold and maintain a parental order register. When the child is born, the surrogate and her partner, if she has one, will record the child’s birth on the live birth register. Once the parental order has been granted, the court will send a copy of the order to the Registrar General and a new birth certificate will be issued. That is important when we satisfy ourselves about the legal rights and status of the parental order and how that will affect the child. This will be a certified copy of the entry in the parental order register.

Following the JCHR’s clear recommendations about the remedial order, we do not strictly need to debate the order, but the Government took the view that a joint debate with the parental order regulations would be more appropriate, and I am glad that this Committee has done so too. I hope that this debate has helped to illustrate the reason behind the regulations and explained the policy behind them, and I hope that we have been suitably transparent on an issue that many hon. Members will have very clear views about. I commend both statutory instruments to the Committee.

--- Later in debate ---

[Jackie Doyle-Price]

I thank hon. Members for their contributions. I particularly thank the hon. Member for Washington and Sunderland West for the constructive way in which she has approached this issue. We want to ensure that the law is fit for purpose in the 21st century, when surrogacy is becoming more common, and I look forward to having further conversations with her as the Law Commission continues its work. It is clear that the use of surrogacy arrangements has grown massively since the original legal framework was drawn up, and we really need to satisfy ourselves that the law is fit for purpose.

The hon. Lady asked when the measure will kick in. It will kick in 14 days after I sign off these statutory instruments following the approval of the House, so we can take action straightaway. Clearly, however, a lot of people have been waiting a considerable time for the change, so it will be possible to make retrospective applications going back six months. We kept that the same as in the previous legislation, but clearly the courts will be able to consider whether the change of law applies to a case and make judgments on that basis.

The hon. Lady also mentioned court fees. Those are of course primarily a Ministry of Justice issue. We are happy to follow up with the MOJ, but I am fairly confident that the fees will not be excessively burdensome, bearing in mind that parents have to go through the legal process of seeking a parental order as it is.

My hon. Friend the Member for Brigg and Goole showed his great passion for and interest in this subject. He is absolutely right that there are still issues with surrogacy law. It was without hesitation that I approved the grant to the Law Commission to have a good look at this whole area. He specifically mentioned parents with no genetic link to the child and the legal issues that follow from that. It is only when we think about these issues in the round that we realise just how vulnerable both parents and children are when the law is less than satisfactory. I can say to him categorically that the Law Commission absolutely is picking up the genetic link issues in its review, and I am sure it would welcome representations. I was interested to hear about his continuing work on this subject.

The Government recognise that there is a small but important number of individuals who have been waiting patiently for the law to be changed. No matter how small their number, it is essential that we in Parliament ensure that those people’s rights are protected and guaranteed, particularly given that we found such an obvious lacuna in our law. Those are people who are not currently recognised legally as the parent of their child, which is not good for the child, either. There are also people waiting to undertake a surrogacy arrangement with the support of a national surrogacy organisation who want the certainty of being able to apply for legal recognition of parenthood before embarking on their journey. That illustrates that people want the responsibility of exercising parenthood, and we absolutely must ensure that the legal framework enables them to make that choice and do it correctly.

Once again, I thank everyone for the spirit in which they approached these measures. We have corrected an injustice here, if I may say so, Mr Evans. I thank everyone for their contributions.

Question put and agreed to.

Draft Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Resolved,

That the Committee has considered the draft Human Fertilisation and Embryology (Parental Orders) Regulations 2018.—(Jackie Doyle-Price.)