Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Viscount Craigavon Excerpts

Wednesday 12th December 2018 Grand Committee

[Baroness Barker (LD)]

My Lords, I thank the Minister for introducing this debate in the way that he did and giving the background to the instruments before us today. I should declare that I am a member of the All-Party Parliamentary Group on Surrogacy. I have a long-standing interest, fuelled by many a night sitting listening to the noble Lord, Lord Winston, as we went through various bits of legislation but principally by the work done by Surrogacy UK in 2016 when it produced a report. There was a debate in December of that year. Baroness Warnock was no longer a Member of your Lordships’ House, but the noble and learned Lord, Lord Mackay of Clashfern, was. Those of us who had been involved in legislation on this matter from the beginning in the 1980s accepted that the overall legislative framework we now have is not really fit for purpose, not least because of the many scientific advances that have happened in the intervening years. As the noble and learned Lord, Lord Mackay, observed in that debate in 2016, there are now many more ways in which families, as well as children, are created.

The Minister was right that the original stimulus for the legislation was the case of a man who in 2015 had a child by surrogacy abroad, brought the child back and found that the child’s status was incompatible with our law at the time, which stated that parental orders could be made only in respect of a couple. That was two and a half years ago. In the meantime, others have found themselves in similar limbo. The courts have had to make what are essentially temporary orders. Those orders are above all for the welfare of a child: a child is being cared for by somebody who is not their legal parent and has no legal responsibility for them. We should not lose sight of that.

This measure is a welcome step forward which offers a degree of certainty not only to individual parents or intended parents who find themselves in this position but to the children. I am pleased that the Law Commission is now undertaking an extensive review of the legislation. The All-Party Parliamentary Group on Surrogacy is conducting its own hearings on the matter. For just a small all-party group, the hearings have been extremely interesting. We have had a huge number of people give evidence, some with very conflicting views. I think that we will end up with an interesting report that feeds into that work. My guess is that the Law Commission will take about two years to produce a report.

My reason for mentioning all that is that time ticks by for individuals as we debate these matters. I do not suggest for a moment that we should do anything in a rush, but, at the same time, it is incumbent on us to deal with some matters urgently, because to do so is in the interest of individuals.

There are some ways in which a single person applying for a parental order will be still be left outside these remedial orders. I understand that a case is before the courts at the moment of a woman whose relationship with the biological father of a child has broken down. She is now in the position of being a single person who has no biological relationship with the child but nevertheless wishes to have parental responsibility. Another tragic case is before the courts in which one member of a couple has died subsequent to the fertilisation process having taken place.

However long the Law Commission takes to do its work, which it should do extensively and thoroughly, I think that we will continue over the years to have a small number of cases that are intensely important both for intended parents and for children. It is therefore likely that we will find ourselves back in this House making more revisions of regulations of this kind before we get the comprehensive review of surrogacy law that we need so that practitioners, medics, intended parents and children all have a better understanding of where we should be legally in this day and age.

[Viscount Craigavon (CB)]

My Lords, I will say a few words, partly reflecting what the noble Baroness, Lady Barker, said. I spoke on this subject in her debate some time ago.

We should be extremely grateful to the Law Commission for taking on this, in my opinion, very difficult and rather controversial work. Only an organisation like that is going to bring this to some sort of conclusion, but as the noble Baroness, Lady Barker, said, it will take considerable time, and understandably so—we do not want to hurry it. However, one or two problems are going to slip through the net before it reaches its conclusion. The noble Baroness, Lady Barker, mentioned particular problems and some of them might be resolved, as she said, by further orders but some will still be in difficulties because some women simply do not have the time to spare in their reproductive cycles to wait for these problems to be solved.

There is another example, similar to what the noble Lord, Lord Winston, was saying. In rather rare cases of cancer, the treatment disallows women from being able to be genetically connected to the child who is being born. That is another example where we might be in difficulties over the long time period we have. I very much welcome these regulations, and I hope the department will keep an eye on difficult cases that come up. We will be looking after them as well.

[Baroness Thornton (Lab)]

My Lords, on this occasion I thought I would let the experts go first—it is called delegation. Like all other noble Lords, I welcome these regulations. I think it is my first experience of a remedial order. As a bit of an anorak in these matters, with 20 years in your Lordships’ House, it is very exciting when you find yourself with a parliamentary procedure that you have not come across before. It is also interesting that the remedial order has then led to the statutory instrument that flows from it. We have also made all the right authorities happy.

I welcome the fact that the Law Commission is reviewing surrogacy. It is a three-year project, so the noble Baroness, Lady Barker, is right in what she said. In the time that I have been involved in doing health work in your Lordships’ House, every year or so we come back to some or other tweak, which is either down to medical science having advanced or, as my noble friend Lord Winston has said, technology having advanced. When my noble friend was speaking, I was reflecting on the fact that you can use the myheritage.com website to track down your genetic relatives from all over the world. If they are there, they will pop up. I suspect that will happen—not that we can legislate for that—and I suspect that the noble Baroness, Lady Barker, is right when she says that we will probably be back before the Law Commission has finished its work and certainly before the results of its work have been considered by the Government—whichever Government it is by then—brought forward and put into legislation.