§ Order for Second Reading read.3.37 pm
§ The Secretary of State for Social Services (Mr. Norman Fowler)
I beg to move, That the Bill be now read a Second time.
The first point that I should make about the Bill is that, although I believe that its aims are important and have been widely welcomed on both sides of the House, it is a measure that is strictly limited in its extent. Basically, it seeks to prohibit the operation in this country of commercial surrogacy agencies and the advertising of surrogacy services.
What it does not do is attempt to deal with all the issues raised in the Warnock report which I published last year. As the House knows, those issues range from the legal status of surrogate children to the proposals concerning a statutory licensing authority to oversee research. Many of the issues are complex, and there is deep division about some of the issues, which has been expressed in many of the responses that we have received to the Warnock report.
The Government accept that the proper way to handle these issues is by a comprehensive piece of legislation. Work on that is now taking place, with the intention of introducing such comprehensive legislation as soon as practicable and as soon as the parliamentary timetable permits.
On commercial surrogacy, the question that the Government had to consider was whether it would be better to leave that issue also to the main Bill or whether action could be taken ahead of it. We decided that legislation could and should be introduced. The main reason for that was the considerable concern following the Baby Cotton case in January. The House will recall that Mrs. Cotton received payment from a commercial agency acting on behalf of the commissioning couple. The baby was subsequently made a ward of court and, indeed, remains so. However, Mr. Justice Latey gave care and control of the child to the commissioning parents with permission to take the child out of the jurisdiction of the court.
The case illustrated the kind of difficulties and dangers that the Warnock committee had already drawn to the attention of the public. The Warnock committee was in no doubt about commercial surrogacy, and stated:We have considered whether the criminal law should have any part to play in the control of surrogacy and have concluded that it should. We recognise that there is a serious risk of commercial exploitation of surrogacy and that this would be difficult to prevent without the assistance of the criminal law.Similar views have been expressed by many other bodies.
In the consultation which followed the publication of the Warnock report, the overwhelming response was to the effect that commercial arrangements should be prohibited. Over 90 per cent. of all comments received opposed surrogacy undertaken on a commercial basis. That included the churches, women's organisations and professional bodies such as the Royal College of Obstetricians and Gynaecologists, the Royal College of General Practitioners and the Royal College of Nursing.
The arguments against commercial surrogacy are overwhelming. When it comes to adoption, we do not 24 allow commercial arrangements, for the good reason that the paramount concern must be the interests of the child. The same argument applies here. However sympathetic we may be to the commissioning parents, the interests of the child must come first.
Many would argue against all surrogacy arrangements, but it is clear that the presence of commercial agencies risks the exploitation of women by agencies with a financial incentive. Frankly, I believe that it is simply unacceptable to sell children, whether before or after birth.
§ Mr. Harry Greenway (Ealing, North)
Is my right hon. Friend aware that the individual woman appears not to be covered by the Bill, because she would not, as an individual acting privately, be an agency? Could she not exploit herself by offering herself for gain as a surrogate mother? Does he agree that that would be wrong and that a provision to cover that possibility should be included in the Bill?
§ Mr. Fowler
The House will have to make a judgment on that. Our judgment is that it would be wrong to involve the woman in that way, first because of the possibility of the taint of criminality on the child and, secondly, because it is just as likely that the woman would herself be exploited. That is why we have not extended the concept of criminality to the mother. However, it is a point that the House can consider.
The case for acting now is overwhelming. If the Government were to wait to make regulations under a comprehensive Warnock Bill, the result would be a delay in which more births would be likely to take place into what everyone agrees is a lebal limbo. That could lead to one of the tragic cases which have occurred in the United States, for example, of a handicapped baby born and disowned by both his mother and the commissioning parents. A Bill now can do something to prevent such problems from arising.
The legislation therefore has the limited but vital objective of prohibiting the further development of commercial surrogacy in Britain. It will also ban the advertising of surrogacy services by agencies, surrogate mothers or commissioning parents.
Clause 1 defines a number of terms for the purposes of the Bill, in particular "surrogate mother" and "surrogacy arrangement". Clause 2 provides for the prohibition of commercial surrogacy agencies, and subsection (1) lists the activities in relation to surrogacy which the Bill prohibits if done on a commercial basis. These involve initiating, or taking part in, negotiations with a view to making a surrogacy arrangement or compiling information with such a view. An important provision of clause 2 is subsection (2), which excludes surrogate mothers—to whom my hon. Friend the Member for Ealing, North (Mr. Greenway) just referred — and commissioning parents from an offence under subsection (1).
Our prime aim in this measure is to outlaw commercial agencies. It is not part of the purpose of the Bill to penalise the infertile couple who may be driven by their plight into making a surrogacy arrangement. Nor do we want to penalise the surrogate mother, who may genuinely consider that she is helping another woman who is unable to carry a child by making parenthood possible for her. We must guard against the possibility that such women might be exploited by commercial agencies. We have therefore concluded that it would be best not to penalise the surrogate mother.
§ Mr. John Butterfill (Bournemouth, West)
Has my right hon. Friend considered that charities might be established for the express purpose of operating a surrogacy agency, which would not be covered by the Bill? Such organisations might even be funded by the GLC, for example.
§ Mr. Fowler
I shall leave aside the last part of my hon. Friend's intervention, as I do not particularly want to enter into that issue. The House has a choice, because we could leave the provisions that are set out in the Bill until a more major Bill is introduced that encompasses the recommendations of the Warnock committee. I think that it is right to take limited action now, as a matter of urgency. We have tried to frame a Bill that will find agreement on both sides of the House and I think that we have achieved that.
§ Mr. Peter Bruinvels (Leicester, East)
Does my right hon. Friend agree that there is concern about any kind of surrogacy, irrespective of whether money is passed? I have read the Bill carefully and I cannot find any provisions in it that cover non-commercial surrogacy. A woman might lend out her body, as it were, for a friend. Are there any plans to introduce provisions that will cover that circumstance?
§ Mr. Fowler
Many of the individuals and representatives of organisations which have given evidence to us believe that surrogacy generally should be prohibited. There are many issues, including the practical steps that can be taken to prevent it happening. That is part of the consideration that we are giving to the report of the Warnock committee.
§ Sir Bernard Braine (Castle Point)
Am I not right in saying that the Warnock committee recommended making all surrogacy arrangements illegal? The House would be more persuaded by my right hon. Friend if he could say when his comprehensive Bill is likely to come before us. It cannot be introduced until the next Session at the very earliest, which means that it cannot become law until the summer of 1986 at the very earliest. The present arrangements will continue until then unless my right hon. Friend is seized of the fact that many hon. Members and the country generally are deeply concerned about the distasteful practice of surrogacy.
§ Mr. Fowler
I hope that my right hon. Friend is seized of the fact that the Government are concerned about these matters and, as an exceptional measure, have introduced the Bill. It would be wrong for my right hon. Friend and me to fall out over this issue, as we both want to achieve the same result. The more major Bill that is to be introduced will be designed to implement many of the recommendations of the Warnock committee. I say to my right hon Friend, in the spirit of friendship, that it would be wrong to attack the Bill on the ground that it does not go far enough. As I said in my first sentence in introducing the Bill, it is a limited measure that has been introduced to deal with a specific abuse. The Government hope that it will receive the consent of both sides of the House.
§ Mrs. Anna McCurley (Renfrew West and Inverclyde)
Is my right hon. Friend suggesting that there are boundaries to the law within personal arrangements in society and that to go beyond certain boundaries could be construed as officious?
§ Mr. Fowler
I am suggesting that in the area covered by the Bill there is almost total unanimity. That is the impression that I was given by the evidence that I heard. The views on commercial surrogacy which have been expressed by the Warnock committee and by virtually all the organisations which have given evidence to us accord with the provisions set out in the Bill. We are trying to take action urgently following the Baby Cotton case. I do not think that any of us wants to see a repetition of that sort of case. That is why the Government are acting urgently. We are not pre-empting any further action that might be taken. I am entirely seized of the point expressed by my hon. Friend the Member for Castle Point (Sir B. Braine), about the need for an urgent response.
I shall continue with my exposition of the Bill. The provisions in clause 2 to which I have not yet referred deal with offences. If a body of persons receives payment for a surrogacy arrangement or a person knowingly takes part in the management and control of a body which acts commercially in these matters, they or he will have committed an offence.
Clause 3 deals with advertising. It makes it an offence to advertise surrogacy services where the advertisement is made by an agency, by commissioning parents or by a surrogate mother. This provision is cast more widely than clause 2 and so applies to the commissioning parent and the surrogate mother. This is because advertising may well be a first step towards commercial activities of the kind that the Bill is designed to prohibit. We have framed this provision to catch all the main forms of advertising, whether in newspapers or periodicals published here or on radio or television intended to be received here.
Clause 4 deals with penalties and provides that an offence relating to agency activities carried out on a comercial basis—an offence under clause 2—carries a penalty of three months imprisonment or a fine not exceeding £2,000, or both. Offences under clause 3, relating to advertising, carry a penalty of a fine only not exceeding £2,000. Clause 4(2) provides that prosecutions need the consent, as appropriate, of the Director of Public Prosecutions in England and Wales or the Director of Public Prosecutions for Northern Ireland for cases in Northern Ireland.
Clause 5 provides that the Bill shall extend to the whole of the United Kingdom. As there is no specific commencement provision, the legislation will come into force after receiving the Royal Assent.
We believe that the publicity that there has already been about our intentions in this measure will have been sufficient to forewarn many people who are already involved in the activities that the Bill will prohibit or any who might have been contemplating setting up commercial surrogacy agencies. I have been encouraged by reports that the major commercial surrogacy agency operating in Britain has already decided to stop functioning in the expectation of the enactment of the Bill.
We know that there are several surrogate pregnancies already arranged by commercial agencies which clearly cannot be affected by the Bill. To take account of these and other surrogate births, we recognise that there may be a need for guidance for local authorities on the action that they should consider if they become aware of a surrogate birth.
When I made my initial statement, my hon. Friend the Member for Renfrew, West and Inverclyde (Mrs. McCurley) asked what could be done for those NA, who are 27 involved in a similar tangle to that of Baby Cotton's parents. A similar point has also been put by Mr. Justice Latey who dealt so expeditiously and sensitively with the case of Baby Cotton. The judgment in that case made it clear that the High Court has powers to protect the interests of children born as a result of surrogacy arrangements and that it will use the powers where necessary. In addition, local authorities have powers and duties to protect children who may be at risk.
My Department will therefore shortly issue a circular of guidance to local authorities. The guidance will set out the general principles on which local authorities should operate—not just in cases that this Bill seeks to prevent but in other cases where there is no commercial element. An authority that knows that a baby has been or is about to be born in its area as a result of a surrogacy arrangement will wish to make inquiries to satisfy itself that the baby is not or will not be at risk. Obviously, the circumstances can vary widely in individual cases. An authority's overriding concern in deciding what, if any, action is needed will be the child's welfare. In that sense, surrogacy does not differ from any other situation in which a local authority becomes aware that there is a possibility that a child needs protection.
The guidance will deal with the legal issues involved and the steps that a local authority should take where it believes that the child may be at risk. It will draw the attention of authorities to the court judgment in the Baby Cotton case. The judgment commended the advantages in similar unusual and complex cases of making a child a ward of court. We shall be sending this advice to authorities as soon as possible.
We hope that, because of this Bill, surrogacy cases where a local authority has to intervene—as it did in the case of Baby Cotton—will in future be rare, but there are difficult matters, and I hope that authorities will find it helpful to have that advice available.
§ Mr. Frank Field (Birkenhead)
So that we can be clear about the nature of the measure, is the Secretary of State saying that he will not return to the House later with a measure to forbid surrogacy arrangements in which there are no financial gains for the parties involved?
§ Mr. Fowler
That matter is part of the consideration that the Government are giving to the wider issues raised in the Warnock report. As I have already made clear, the Government intend to bring forward a major Bill, which this does not pretend to be, to deal with all those issues. I believe that that would be in the interests of the public and is what the House would require to be done.
§ Mr. Fowler
The Bill and its preparation are extremely complex and subject to the demands of the parliamentary timetable. No decision on that has been made. I cannot guarantee when it will take place, but I should like to see such legislation brought forward as soon as possible. I cannot give a guarantee, because there has not yet been full consideration of the legislation.
The purpose of the Bill is to tackle the issue of commercial agencies and the advertising of surrogacy services. The Bill does not tackle all the major issues 28 raised in the Warnock report. The Government recognise that a major Bill will be necessary to achieve that. I emphasise that point. Nevertheless, action on commercial surrogacy is important and urgent. It has been supported by a range of outside bodies. It will go a long way towards preventing abuse and, above all, to placing the interests of the child first. It is upon that basis that I ask for the support of the House.
§ Mr. Michael Meacher (Oldham, West)
As the Secretary of State has been at pains to point out, this is a limited Bill targeted exclusively at outlawing the commercial dimension of surrogacy about which, as he said, there seems to be widespread abhorrence. Let me say immediately, speaking as an individual on a moral issue which will be the subject of a free vote, that I accept and support the principle underlying the Bill.
I believe that the measure is, however, unfortunately motivated by some over-reaction to the Baby Cotton case. It is a pity that for that reason the commercial aspect of surrogacy is being divorced—if that is the word—from a wider consideration of the general framework within which surrogacy should be handled.
The case for criminalising commercial agencies that procure surrogate motherhood is clear. It is based upon the genuine risk of the exploitation of desperate couples and the risk that poor women would be induced into pregnancy, at least in some cases, for the money. To put it another way, the commercial inducement to offer one's womb for rent exposes low-income women to exploitation as rich peoples' baby farms. Not only is that utterly unacceptable in itself: it raises the likelihood that the natural mother may, in due course, argue that she was pressurised into parting with the baby.
I should be the first to agree that such distressing "tugof-love" conflicts already occur in some adoptions and cannot be excluded in cases of non-commercial surrogacy. I am sure that the House will agree, however, that the cash pressure makes that far more likely in commercial cases.
There is another fundamental reason why I believe that commercial surrogate motherhood should be made illegal. It is that matters can easily go badly wrong. The commissioning father may come to believe that the child is not his—at least he cannot disprove that the surrogate mother was already pregnant at the time of impregnation; or the surrogate mother may refuse to hand over the baby after birth, as happened, as the Secretary of State mentioned, in the celebrated case in Pasadena, California, in 1981; or the baby may be severely handicapped at birth, with neither party willing to take it; or the surrogate mother may become ill during pregnancy and take certain drugs which damage the foetus.
For all these reasons, where the situation is exacerbated by impersonal surrogacy, undertaken for payment, it is wholly wrong to believe that commercial contracts, however carefully they may be drawn up by Miss Blankfield, who is the person we normally speak of in that regard, can be proof against highly damaging consequences not only for the parties to the contract but, more seriously, for the resulting child. For that reason, too, I should be glad if commercial surrogacy were ruled out.
Given my support for the Bill on those principles, I recognise that its drafting reflects some ingenious microsurgery on the part of the Department of Health and 29 Social Security in separating out the commercial considerations from the wider moral issues. It performs well the technical function of closing loopholes which some had thought would make a ban unworkable. The case of Kirsty Stevens which The Observer, in a celebrated article of 13 January 1985, thought would be untouched by any likely legislation, will, if I am right, be prevented in future by the ban on advertising, even by private individuals. At the same time, family arrangements will not be affected by the Bill, which I am sure is right, but it will be extremely difficult, if not impossible, for strangers to become known to each other, given the constraints of the Bill, as willing participants.
I have one technical criticism about the drafting of the Bill. The imposition of strict criminal liability on newspaper proprietors and editors who unwittingly publish advertisements—I quote clause 3(1)—containing an indication (however expressed)that surrogate arrangements may be sought or may be available seems to me to be unduly harsh and oppressive.
However, I confess to some unease about a legislative strategy which is geared to focusing upon a practice which may well be on the decline, anyway, while at the same time it defers, perhaps for longer than is now being suggested—I did not take too much heart from the reply of the Secretary of State to my question—the real issues which go to the heart of the matter.
It is perhaps significant that surrogate agencies in the United States recently have experienced a marked falling away in their trade. It was reported on 7 January 1985 in The Daily Telegraph that one non-profit-making group in the United States, which claimed at the end of 1982 that it had signed on 400 young women willing to serve as surrogate mothers, is no longer active. It was stated in the same report that in state legislatures right across the United States there is no longer any noticeable pressure to draw up laws to regulate this matter, partly because experience had shown how many things can go wrong, partly because there had been several disputes about paternity which wound up in the courts and partly because costs—amounting not just to £6,500, as in the Baby Cotton case, but to about £20,000, taking account of everything—were proving for many infertile couples to be a prohibitively expensive way to start a family. Britain is not, of course, the United States. However, all this suggests to me that over-reaction to the Baby Cotton case may have been a trifle premature and that there may be an element in the Bill of trying to bar the stable door after the horse has bolted.
Be that as it may—I am no more aware of the full statistics than are the Government—the real weakness of the Bill is that it still leaves unresolved the surrogacy issue. The questions asked by the Secretary of State's hon. Friends demonstrate that fact, and I agree with them. Even if surrogacy is not outlawed, it still leaves open the question whether professional involvement in surrogacy arrangements should be outlawed. If it were to be outlawed, parents would be left in a counselling and advice vacuum. The child could still be placed in a vulnerable position. I suspect that back-street networks would almost inevitably emerge. On the other hand, a doctor in private practice who offered to supply a surrogate and then took a consultation fee could be said to have acted in a way that was very little different from that of a commercial agency.
30 Having listened to the speech of the Secretary of State, it is disappointing that the Government have given no hint about their own views regarding the involvement of money in the surrogacy relationship. My view is that the involvement of money, other than for reimbursing the carrying mother for the necessary costs of nine months of pregnancy, is in principle undesirable and wrong. That view commands almost universal acceptance. However, the use of surrogacy where money is not involved as an option for the treatment of infertility should not, in my view, be wholly ruled out, although it should be considered only as a final resort.
§ Mr. Meacher
When I have finished this part of my speech.
For example, a woman with functioning ovaries but a damaged womb can achieve children who are genetically hers as well as those of her husband after laparoscopies for ovum recovery, in vitro fertilisation and then embryo transfer to a surrogate. Hon. Members may say that such examples are rare, and I am sure they are, but they seem to offer a significant warning against any law that is designed to suppress surrogate services altogether. I shall now give way.
§ Mr. Ward
I am grateful to the hon. Gentleman. I hope that in qualifying his approval of the Bill he is not assuming that all of us necessarily want legislation to be introduced for all forms of surrogacy. I believe that the hon. Member for Holborn and St. Pancras (Mr. Dobson) agrees with me. There are certain issues about which we should legislate only after long consideration and after having listened to all the relevant arguments. Because most of us are prepared to listen to those arguments it is important that this piece of holding legislation should be speedily put on to the statute book. That will give us time to listen to the other arguments to which the hon. Member for Oldham, West (Mr. Meacher) so rightly referred.
§ Mr. Meacher
I have already said that I am perfectly happy in principle to support the Bill, but the point I am trying to make is that it is not possible logically to disentangle some of these other wider issues. I am worried that this fairly modest measure may result in an unfortunately long period during which these other important issues are digested. That is why I should have preferred there to be one measure only.
I suspect that many people would choose a surrogate child who had a genetic relationship with them or with their partner rather than an adopted child with whom neither they nor their partner had a genetic relationship. Indeed, a minority on the Warnock committee recommended that a charitable body like an adoption society should be permitted to provide well-screened and suitable surrogates for infertile couples, that it should receive no money and that it should pass on only the minimum necessary payments for costs duly incurred by the surrogate.
Unless one adopts — some hon. Members might, judging by their questions — the prior attitude that surrogacy in principle is not to be condoned in any circumstances, even if, in the case of surrogacy for love, it cannot be wholly prevented, in the last analysis I believe that the Warnock minority view is reasonable, deserving 31 further serious consideration. I am only sorry that on this matter, which is so close to the heart of the Bill, Ministers have been content simply to defer decisions without, in the meantime, giving any sign of their thinking. To say the least, it is regrettable that the Bill, without imposing an outright ban, conduces to amateurish or exploitative do-it-yourself arrangements in a procedure which, if it is to be used at all, should surely be attended by the advantage of full medical, legal and counselling services. But on that, regrettably, Ministers remain silent.
§ Mrs. McCurley
One thing worries me about the minority view in the Warnock report. Does the hon. Gentleman agree that, if we were to establish surrogacy, even through clinics in the National Health Service without any money being exchanged, we would still have the problems to which he referred, such as psychological and social problems? As a consequence, there would be additional bureaucracy and social workers, and all the other problems—I am not just getting at social workers, but I am saying that we are building up attendant problems which, frankly, this society can do without.
§ Mr. Meacher
The hon. Lady may not have been getting at social workers, but she made a good fist at it. I do not see the NHS particularly as a bureaucratic organisation or social workers as a hindrance, although no doubt their performance and services could always be improved. However, I personally take the view that what makes surrogacy so distasteful is the pressures that commercialism introduces. In the absence of them, I can see that in a few highly exceptional cases, perhaps as a last resort, and certainly not as a frequent procedure, there may be some correct provision for a surrogate motherhood.
The other yawning gap in the Bill that cries out for attention concerns the vexed issue of legitimacy, which has not been mentioned. Answering questions on his statement on 7 March, the Secretary of State referred to the status of the child—and I agree—ascompletely unsatisfactory at the moment."—[Official Report, 7 March 1985; Vol. 74, c. 1189.]However, it does not seem unsatisfactory enough to prevent the Secretary of State passing by on the other side and postponing the issue indefinitely into the future. I hope that that the Bill will come forward soon, but I wonder.
This issue can and should be grasped sooner rather than later as virtually everyone accepts that, in vitro fertilisation and surrogate children need to have their legal status regularised and recognised. Some movement in the right direction was taken in the Law Commission report in 1982, which recommended that discrimination between legitimate and illegitimate children should be removed, and that children produced by means of artificial insemination by donor should be legitimate when born to a married couple. That is an advance, but it is unsatisfactory because it still leaves in limbo the child born to an unmarried woman or the child rejected by the husband.
Therefore, this might be a better solution. I offer it as a model for consideration. It lies in querying the whole concept of legitimacy in its traditional form and adopting the Warnock suggestion as to social parenthood, coupled with disallowing rights to donors. Parenthood, and parental rights, would then rest with the carrying mother, to be passed on, if appropriate, as at adoption. That 32 woman would then register the child's birth on her own or with her partner, all parental rights and duties would be vested in those who registered in that way, and any handing over of parental rights subsequent to that could be arranged, as happens now in adoption. All inheritance and other legal rights would then accrue from those parents to the child in the normal way. That is only one model, but I believe that something along those lines is needed and would be a great improvement on the present highly unsatisfactory situation.
For all the reasons that I have given, I do not demur from the single issue underlying the Bill, but I am concerned that the Government have embarked on this brief measure without, as yet — I am sure that the Secretary of State will correct me if I am wrong—having thought through at all the implications of several other related issues which, logically, simply cannot be disentangled from the rationale of the Bill. Frankly, the history of short emergency Bills preceding a major and necessary piece of regularising legislation has never been happy in the House. We in the Opposition will do our best in Committee to make changes that improve the Bill. We believe that that needs to be done. However, I fear that in the peculiarly sensitive area of human infertility, the single-issue and disconnected Bill now being introduced may turn out to be no exception to that general rule.
§ Sir Bernard Braine (Castle Point)
In introducing the Bill my right hon. Friend the Secretary of State was at pains to say that it has only a limited object—to deal with commercial surrogacy only. The greater detail is to be left to a more comprehensive measure which, as I think I said in my intervention, is hardly likely to become law before the end of next year.
Speaking solely for myself, but probably for many others too, I would say that such a long delay in dealing with a subject that has caused considerable concern in the nation as a whole as well as in the House is not satisfactory and is leaving it for far too long. If the Government can carry the House with them and improve the Bill, well and good. I certainly go along with that. However, I do not approve of their approach. Either the practice of surrogacy is undesirable and antisocial, and carries considerable risks for the children concerned, or it does not—or does not in any substantial measure. If it is undesirable, I feel that it is not possible to accept the argument put before us so far.
The plain fact is that surrogacy is not outlawed in the Bill. I want to know why not. I should have liked to hear my right hon. Friend make the broad case against surrogacy. He did not do so. He left that in the air. He assumes that we understand it already. Perhaps that is correct in the House itself, but I should have thought that the country should be told why surrogacy as such is not being outlawed in this Bill, but will be in some subsequent Bill. Yet money may change hands between surrogate mothers and prospective parents. Surely we should serve notice now that that is not acceptable.
There are other difficulties. For example, my right hon. Friend did not refer to the legal problems surrounding the child of a surrogacy arrangement. Who, in law, is the mother? What safeguards are there for the child? I remember remarking in an earlier debate that clever, intelligent, far-reaching and searching as the Warnock report was, little consideration was given by its authors to 33 the implications of what was recommended for the child. Therefore, I believe that before the debate is ended something should be said about those matters.
In paragraph 8.18 Warnock proposed that professionals knowingly assisting in surrogacy should be criminally liable. The Bill makes no mention of professional liability. Why not? If there are difficulties we should be told. We should be told that the matter cannot be dealt with now, but we shall most certainly deal with it in future legislation when ever that is brought before the House. Again, in paragraph 8.19, the Warnock report proposes that all surrogacy arrangements should be made illegal and any such contracts would thus be unenforceable in the courts, but the Bill completely ignores that firm proposal. I appreciate my right hon. Friend's argument that serious problems and difficulties arise that could not be dealt with in this Bill but which will certainly be dealt with in a later Bill. This should be spelled out now.
I shall be brief because many of my hon. Friends wish to contribute. Nevertheless, I give notice now that I do not like this method of proceeding and I hope that before we vote on the Bill my right hon. and learned Friend the Minister for Health will answer some of the questions that I have raised. In my view, the matter is so important socially that not only Parliament but the public must be told why, if we cannot have the whole loaf, we must accept a crust at this juncture, knowing full well that a year or 18 months will elapse before the promised comprehensive legislation is introduced. Frankly, that is not good enough.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
I do not share the confident predictions of the right hon. Member for Castle Point (Sir B. Braine) as to how long we shall have to wait for the coming of the great Bill which will roll all the moral issues into one and deal comprehensively with all the problems raised by Warnock and everyone else. I believe that the difficulties have been seriously underestimated. Indeed, Ministers have already hinted that the Bill may take a good deal longer than the right hon. Gentleman suggests. Therefore, those of us who feel strongly about these matters cannot assume that that legislation will be introduced even in this Parliament. Important and urgent matters such as surrogacy and experimentation on human embryos cannot wait for that legislation.
Many of the other issues dealt with in the Warnock report were cases in which advances in medical technology had brought new moral dilemmas which we have not previously had to face. It can scarcely be said, however, that the issue of surrogacy has suddenly landed upon us. In this context, I was amused to read the comments of Nature magazine on the Government's initial reaction and their statement that the Bill was to be introduced. It said:The British government's guiding principle, well illustrated by last weekend's fuss and what may yet flow from it, is that the general opinion jumps most readily to prohibition when it is taken by surprise.The country may have been taken a little by surprise at the sheer effrontery of the Baby Cotton case, but surrogacy has certainly not landed upon us as a result of modern technical advances. The issue has been with us for generations. Indeed, it is well developed in the book of Genesis, chapter 16. When Abraham's wife proved unable to have children she said to her husband: 34I pray thee, go unto my maid; it may be that I may obtain children by her.And that is exactly what happened.
The book of Genesis, however, goes on to illustrate the problems that arise from surrogacy. Sarah was soon complaining that her bondservant was getting too proud and looking down on her because she was bearing a child and Sarah was not. Later, when Sarah produced a child of her own, she protested strongly that her son Isaac should not have to share his inheritance with Ishmael, the "bondswoman's son" who had come on to the scene as a result of the earlier surrogacy arrangement. So let us not pretend that the issue is new.
§ Mr. Greenway
I am impressed by the hon. Gentleman's biblical knowledge, but was not Sarah 99 years old at the time?
§ Mr. Beith
She was indeed, and it was thus quite reasonable for her to conclude that she was unlikely to produce a natural child thereafter. In fact, of course, she did. People are so often wrong about these things and subsequent events may then give rise to problems. My point is simply that the problems are not new. All that modern technology has done is in certain instances to remove the direct adulterous relationship between the commissioning father and the mother commissioned to carry the child, and even that intervention requires a fairly minimal level of medical technology.
It is true that more openly commercial transactions have recently come to the attention of the public, but such transactions are also not new. One does not have to look very deeply into the recesses of the 19th century to find extensive examples of commercial activity in procuring the birth of children for childless couples.
There is, however, good reason for concern about the possible development of commercial surrogacy agencies and it is right that a measure of this kind should be introduced. I believe that it is widely agreed that there is something morally wrong about the purchase of babies, especially the form that it takes in surrogacy arrangements. Nevertheless, surrogacy is not the only instance in which babies are purchased and legal safeguards are required. For instance, our adoption laws were altered fairly recently in an attempt further to limit the possibility of the purchase of babies. There is also the danger of exploitation of the mothers due to financial pressures. A further danger is that agencies will grow and surrogacy will become more common as a result of the commercial activities of agencies determined to make a living out of the practice.
I shall argue that we should not encourage surrogacy, but I first make this qualification. Whatever we do to try to restrict the practice, even if we were to follow the advice of the right hon. Member for Castle Point and seek to outlaw surrogacy altogether, we shall not be able to prohibit adultery or the arrangement entered into by Abraham to obtain a surrogate child. Artificial insemination by donor will also not be prohibited, although it involves a commercial element in that the donors are paid for their sperm. Despite the many problems that arise from those two forms of activity, it seems unlikely that Parliament will attempt to prohibit them. That situation should serve as a warning to us in deciding what it is reasonable or feasible to do in seeking to prevent surrogacy.
This is very much a personal issue and I do not personally believe that one can reasonably expect to 35 achieve an effective ban on all kinds of surrogacy. Nevertheless, we should take steps to discourage the spread of such practices, for a number of good reasons. Those reasons, however, relate to the very issues that the Government felt unable to tackle and thus left out of the Bill. I realise why it was necessary to introduce a limited measure, but I believe that some of the problems left unresolved may continue to cause great difficulties and that not all of them need have been excluded from the Bill.
I shall not add to what has been said about the problems of legitimacy and I recognise that that subject is too wide for the scope of the Bill. There is, however, the somewhat narrower question of who is the legal mother of a child produced under a surrogacy arrangement and the application of general adoption law in this context. The law rightly makes certain provisions to protect the mother of a child which might be adopted from being subjected to great pressure at the time of adoption, providing for a breathing space or cooling-off period before a final decision can be made. The application of that law to surrogacy cases must be considered. We need more guidance from the Government on that subject.
Other aspects of adoption law are also relevant. There is the right of an adopted child, at the age of 18, to discover the identity of its natural mother. Parliament gave adopted children that right a few years ago. What would be the position of a surrogate child? I assume that it, too, would enjoy the right to learn the identity of its natural mother when it had reached the age of maturity. Surrogate mothers may not have realised that that would be so when they agreed to undertake surrogacy.
§ Mrs. McCurleyMr. Beith
I am sure that there can be just such an effect. I am not sure that one can make an absolute qualitative distinction between the circumstances, but there are important factors to be borne in mind when we compare what happens to an adopted child under present arrangements and what would happen to a surrogate child. Children are normally adopted through an adoption agency which will counsel the parents to advise the child, from the earliest possible age, of the nature of its adoption. The adoption society would encourage the parents to make sure that the child understood from an early age that it had been adopted, and why. What advice would be given, and by whom, to people taking into their family a child borne by surrogacy? Would they be advised to tell the child, at the earliest possible age, of the circumstances? It is difficult to predict what the emotional outcome of that would be. That is an area of real difficulty.
When the Secretary of State made his initial statement to the House, I questioned him about another point. The Warnock committee recommended that surrogacy contracts should not be enforceable by law. The Secretary of State seemed to take the view that the law as it stood was quite clear and that no such contract—a contract to hand over the baby, or the money — would be 36 enforceable in the courts. If the right hon. Gentleman has any doubts on that point, some provision should be included in the Bill. If he is wholly satisfied that the law provides no opportunity for enforcing contracts between the mother, the agency and the prospective parents, he should say so.
What is to be the fate of the children involved? That is the test that we must apply. I fear for the position of children born in this way, and that is why I believe that Parliament must make it clear that there are many dangers attached to the practice of surrogacy, and that many problems will be stored up for the children. We must make that clear even to people who are looking for a reasonable way of dealing with the problem of childlessness—to people who want to offer a home to a child and who may well have the emotional and material resources to give a child a good home and so to contribute to society. Like the hon. Member for Oldham, West (Mr. Meacher) I feel that there might be circumstances in which someone could persuade me that it was reasonable for such a couple to resort to surrogacy. I therefore do not agree with those who want a complete ban on surrogacy. However, I believe that such a couple should be left in no doubt about the dangers and the problems that they may face, just as those of us who adopt children know that serious problems and potential difficulties are involved.
§ Sir Bernard Braine
The hon. Gentleman refers to the effect upon the children. That is an extremely important point. The House needs to know what medical and psychiatric evidence has been given by people eminent in their field — some individual hon. Members have received such evidence—about the likely effects on a child who in later years demands the right to hear how it was born and who its real mother was. The effect upon a child must be incalculable, and the cost to the community is likely to be considerable.
Experts have already expressed views on the subject. Is not the House entitled to know what advice has been given to the Government on that point, following the Warnock report, and why there is no provision on that score in the Bill?
§ Mr. Beith
I hope that Ministers will be as frank as they can with all the information at their disposal. However, many circumstances of birth cause problems in later life, and surrogacy is only one of them. It would be dangerous to single out surrogate birth and to claim that anyone who finds out that he was born in this way will be uniquely liable to great emotional trauma in later life. Many circumstances of birth can cause psychological difficulties in later life.
As surrogacy is voluntarily and deliberately entered upon, those who resort to it should be given the clearest possible warning about future problems. They should be warned through the general attitude of the law. The attitude of Parliament and of the law towards a form of conduct considerably affects the attitude of citizens. There is no doubt that since the law on abortion was changed, public attitudes to abortion have been influenced in some measure. The law prevents certain categories of people from marrying each other because Parliament, over the years, has taken the view that some forms of marriage —for example, marriage between stepchild and stepparent—could, if they became at all widespread, pose a 37 real danger for similar families. In many areas, the law on a matter seeks to exercise an influence wider than its basic provisions. This Bill should do so.
If Parliament did nothing at this stage, it might be assumed that surrogacy carried the blessing of the House and of informed opinion, when in fact it carries so many dangers that it should not be given that degree of encouragement. That is another reason for taking legislative steps, which are in any case justified, to prevent commercial surrogacy. We must examine the Bill in Committee to see whether it achieves that objective, and whether it does so without paying too high a price in some other directions. There are, for example, the legal aspects to which the hon. Member for Oldham, West referred and about which there has been some press comment. There are the questions of the burden of proof and of jury trial. However, the House should certainly make it clear that surrogacy brings with it serious problems and that the dangers attached to commercial operations in this field are so great that we should not permit them.
§ Mrs. Anna McCurley (Renfrew, West and Inverclyde)
It is right and proper for me to offer my warmest congratulations to the Secretary of State for bringing the Bill before the House, about 15 months since I introduced precisely such a measure. I was then careful to be very circumspect in my approach to the problem. I welcome the Government's sympathetic response not just in producing a Bill but in acknowledging the fact that grave difficulties surround the whole issue of surrogacy, not just its commercial aspects.
It is heart-warming to welcome a Bill that has had so much public response and support. The Government are to be congratulated on acting swiftly, especially following the Baby Cotton case. I am glad that the sale of children is to be banned, for that is what the Bill is about. I am also glad that the Government are considering the primary individual involved—the child. However, it is important to remember the surrogate mother. In the past few months I have had the opportunity to examine the conditions under which women become surrogates. I am ever more convinced that the attraction of the financial element is paramount—well and away above any of the altruism that might be talked about in press revelations.
As the hon. Member for Oldham, West (Mr. Meacher) said, we were expecting poor women to be exploited for the obvious desires of rich women. I am pleased that the activities of the Redhill clinic have now ceased. I have investigated the hard commercialism of that enterprise and its links with the United States and the fact that its activities have been abandoned shows the strength of the Bill.
Commercial surrogacy has been successful in the United States. We all admire many parts of the United States ethos, but we do not always try to emulate them. Although it is said that the morality of the United States reaches us in 10 or 20 years' time, I am glad that we have not waited that long this time and that we have taken a firm and British stand.
The hon. Member for Berwick-upon-Tweed (Mr. Beith) identified an important problem concerning the identity of children and problems that are left with the surrogate's family—a matter that has not been discussed much here. Women who have taken on the job of bearing children for others go home without a baby and discover 38 that their children feel a strange sense of bereavement because no child has been taken home. Occasionally, even a husband who has consented to the arrangement feels revulsion in his relationship with his wife. That causes deep problems in the existing family.
We are sympathetic to infertile couples but do not finance consultations for them properly. However, we must not pile more problems in society on to ourselves. We have enough family problems. The hon. Member for Oldham, West rather resented my reference to social workers, but their existence shows that there are problems enough. We shall only add to those problems if we accept surrogacy. I do not think that it will go underground if we ban commercial surrogacy. Between 6 per cent. and 10 per cent. of women of childbearing age are infertile—the figures vary from consultant to consultant and scientist to scientist — and less than 1 per cent. of them would benefit from surrogacy. The scale is small.
I should like all aspects of surrogacy to be banned, but I accept what the hon. Member for Berwick-upon-Tweed said. In the highlands of Scotland, sisters have frequently made surrogacy arrangements. We must ask ourselves whether we want to interfere with and criminalise informal family arrangements. Such interference worries me. Although I do not want surrogacy to exist as a trade, it would be invidious to interfere too far with family life. The medical profession would be grateful for clarification. I should like my right hon. Friend to consider other legislation as quickly as possible to deal with other aspects of surrogacy.
Many biblical quotations have been thrown about in connection with the question, "Who is the mother?" The judgment of Solomon in the dispute between the two women springs immediately to mind. Solomon the wise suggested that the child be split in two, half being given to each woman. The real mother gave up the child for the love of it. The story tells us much about motherhood. The mother who gives birth to the child must be the legal mother, irrespective of what the law might say.
I hope that the Bill goes through Committee speedily and that there will be consensus on the banning of commercial surrogacy. I hope that there will also be consensus on matters that cannot be seen in such hard and fast terms.
§ Mr. Harry Cohen (Leyton)
The Bill is welcome to the extent that it attempts to deal with commercial agencies that profiteer from surrogacy. Unfortunately, it has been constructed in haste, primarily in response to the furore created in the recent and much publicised case of Baby Cotton. The sensationalism generated by the media and some hon. Members has influenced the Bill to its detriment.
There is a fundamental flaw in banning commercial surrogacy while allowing men to continue to buy private surrogacy arrangements without any legal safeguards. This can only result in more highly publicised baby wrangles, which could lead to Parliament banning surrogacy altogether. In these circumstances we should consider at length the full medical, legal and counselling services that Parliament needs to approve so that surrogacy can be properly regulated.
Despite Fleet Street's unhealthy obsession with what the newspaper headlines proclaimed as "Britain's first surrogate baby", the media were, as is often the case, quite 39 wrong. Surrogacy did not begin with Baby Cotton—only a media interest and hysteria in the wake of the Warnock report.
Infertility has been an unhappily common problem for many families throughout the ages. Some of those families chose to deal with the problem by making private arrangements which actually amounted to what is now called surrogacy, without the matter being known outside the family circle. The drawbacks to these informal measures are myriad and have in their time brought strain and divisions within family relations. That is what the Warnock report was referring to when it said that public opinion was against surrogacy becauseit could drive a wedge between a previously loving partnership".This view fails to take account of the way in which modern medical technology and carefully considered legislation could overcome some of the drawbacks previously associated with surrogacy.
Fertilisation in surrogacy arrangements is no longer reliant on an intimate relationship, and the surrogate mother now conceives as a result of medical technique. The outcome of the pregnancy is a wanted baby for an unknown couple in circumstances similar to adoption. Therefore, the issues for me are not "if' we should use this new technology to fulfil the desires of men and women to have children, but how we avoid replacing the old drawbacks with ones that are new and even more dangerous and damaging. This the Bill has failed to do, by limiting itself only to one of the unfavourable aspects to be dealt with.
It is the duty of Parliament to legislate against the exploitative nature of commercial agencies which see women primarily as objects of profit. Hence, women's rights to control their bodies and fertility are cast aside and trampled on. Unhappily, while we live in a society that falls over itself to make a quick profit at the expense of the general good, medical knowledge will inevitably be misused by capitalist gangsterism. The director of the commercial surrogacy agency in Surrey has been quoted as saying that the company would like to become the Coca-Cola of the surrogate industry—in other words, a big profit industry like any other multinational, with no loyalties or commitment to prevent the expansion of its worldwide exploitative practices. I support provisions in the Bill to prevent Britain becoming a shareholder in this unsavoury global enterprise.
As a Socialist, it appears to me that any form of surrogacy cemented with large amounts of money perpetuates unequal capitalist relations between different social classes and men and women in new, insidious ways. In my view, the Bill fails to deal with this.
The media focus which has highlighted the financial gain made by the surrogate mother fails to mention that only a very small proportion of the money pocketed by the agency is paid to her. She is not paid to undergo twice-monthly artificial insemination, nor if she fails to conceive after six months of these medical ordeals. She is not paid to abstain from sexual relations with her partner, even though she must agree to this provision while conception and pregnancy are under way. She is not paid during pregnancy to ensure that she and the foetus enjoy optimum care, nor if she has a miscarriage. She is most definitely not paid should the baby be born with any handicap. Her 40 only modest payment in this highly lucrative enterprise is on handing over a perfect specimen of a newborn baby. In my view, she is grossly underpaid, and the Bill must be criticised for neglecting to protect surrogate mothers' interests in any future private deals.
The ability of the donor father to pay large amounts of money confers immense power on him. As a result, a grossly unequal bond exists between him, the surrogate mother and his partner. As he has paid for the services of the surrogate mother, he is given personal details about her appearance, the colour of her hair and eyes, height, social class and the town where she lives. If he finds any of these details disagreeable, he can choose another woman. On the other hand, she knows nothing about him except his obvious financial clout. Such voyeuristic relations are not uncommon in Soho, but are usually condemned as deeply exploitative and insulting to women. There is an urgent need to legislate against these unequal arrangements based on immoral notions of men and women.
The power that the donor father's money carries is nowhere more cruelly emphasised than in the role allowed his partner. While making the preparations for the changes in her life when she will become the legal mother of her husband's baby, she is totally excluded from the rights he enjoys. He is kept in touch with the pregnancy by telephone, written progress reports and tapes of the foetal heartbeat, but whether he decides to share these with his partner is up to him alone. That is strange in a society such as ours, which stresses the importance of the role of parent for women. In the family, and in education, work and law, the primacy of the woman's role as chief caretaker of children is reinforced.
Equal rights legislation has hardly dented the unequal relations that working women experience when trying to combine successfully the roles of wage earner and mother, yet when the donor father reaches for his cheque book, his partner's rights as the prospective mother of a baby which she is most likely to nurture to adulthood are erased. The Bill fails to ensure her equal status with her partner during the entire surrogacy processes until the baby becomes legally hers.
For me the crucial issues do not centre on banning new medical technology which can help women and men to have wanted children. Rather, I seek to ensure the equal rights of those concerned when a woman agrees to carry a child for other parents so that surrogacy is free from commercial exploitation as well as from control by men with money. That is not to say that no payment should be involved. Consideration should have been given to the ways in which a surrogate mother could be paid by the state, just as maternity allowances and child benefit are paid. A small weekly allowance could be paid at the time of artificial insemination, increasing substantially as the pregnancy is confirmed and progresses. Setting these amounts would be complex, but for Socialists used to complicated pay negotiations, that should not prove too difficult. I believe that this issue must be tackled in a Socialist way so that people seeking these measures are not barred through lack of money or driven into becoming permanent surrogate mothers through financial desperation, just as in America financial considerations have caused people to become blood donors. As we have seen, there is very little evidence of personal care and concern in commercial or private arrangements, and these must be high priorities in the future.
41 I advocate a limited role for the state in surrogacy. Sadly, many of the welfare aspects of the state have in the past been experienced in a most repressive way by the very people whom we are seeking to help. The practical arrangements could be set up via a national network which is distinct from conventional hospital consultancies. That would save money on high salaries which would be better spent on financing local advice and technology through a network of well woman clinics, counselling services and general practice. Carefully considered, decentralised local provisions would then protect the personal needs of people closely, and transform innovative medical technology into caring national health services.
§ 5 pm
§ Mr. John Butterfill (Bournemouth, West)
First, I congratulate my right hon. Friend on the speed and decisiveness with which he has introduced this measure. Unlike the hon. Member for Oldham, West (Mr. Meacher), I do not criticise him for reacting to public opinion, because it is most important that the Government should react speedily to it. I am sure that the hon. Gentleman would be the first to criticise the Government if they did not react to public opinion.
I am not entirely happy with the measure. I welcome what the Government have done, but they have not gone far enough. I agree with my hon. Friend the Member for Renfrew, West and Inverclyde (Mrs. McCurley) that we should not bring into the scope of the law arrangements which are made within families and which have historically been made within families. However, when matters go outside the family, we have a duty to be interested and to ensure that what is done is for the good of those involved, especially of the child.
We legislate, rightly, for adoption and require that restrictive and stringent procedures are followed. In this case, we seem to take the view that that will not be necessary. That is wrong. The hon. Member for Oldham, West suggested that we might be protecting the surrogate mother from exploitation, but I do not think that the Bill does that. The Bill does not seek to outlaw any payment made to a surrogate mother, so she is equally susceptible to exploitation whether from a commercial or other form of agency.
The Bill's weakness is that it will permit surrogacy to be arranged by local authorities, local health authorities and charities set up for that purpose. Some of those organisations may not be what hon. Members would regard as charities. They may be covers for organisations which make substantial payments to employees and which are funded by all sorts of curious methods. Donations to such charities may not count as payments for the purpose of this legislation. Therefore, there is a grave danger in proceeding in this way. Unscrupulous people could drive a coach and horses through the legislation as it stands.
The only way to overcome the problem is to outlaw the procurement of surrogacy by a third person. That would still permit direct surrogacy arrangements between individuals. If we outlaw all procurement, we shall minimise the risk of exploitation as far as possible within the scope of legislation that could be reasonably enforced by the police. The Bill should be amended to achieve that. We would then protect mothers, and ensure the best possible family arrangements for the child.
§ 5.3 pm
§ Mr. Peter Bruinvels (Leicester, East)
On 7 March, when my right hon. Friend the Secretary of State for Social Services announced to the House that the Bill would be prepared, I was attending the christening of the younger child of my hon. Friend the Member for Glanford and Scunthorpe (Mr. Hickmet). I thought that I was doing my bit to encourage childbirth by celebrating the birth of a child. It is a great asset to have children. It is not a right, but a bonus.
I welcome the Bill because it will cut out one of the most immoral practices that has ever occurred —commercial surrogacy. I remember when news of Baby Cotton was leaked, the furore that any mother would rent out her womb to make some money, and allow her child to shoot off to America. I congratulate my right hon. Friend sincerely on introducing the Bill. I also congratulate my hon. Friend the Member for Renfrew, West and Inverclyde (Mrs. McCurley) who has been campaigning and championing this cause, even before Baby Cotton appeared on the scene.
For many months, medical journals have expressed great anxiety about surrogate motherhood. When we debated the Warnock report, I was fortunate enough to be called and to put on record how I considered the position of a surrogate child. I considered it an oddity, although it was a scientific marvel.
The Bill w ill stop money changing hands. However, like nin hon. Friend the Member for Bournemouth., West (Mr. Buttertill), I am anxious about the charitable aspect, in that a charity could be set up and a surrogate mother paid many years after the birth. I hope that my right hon. and learned Friend will consider that point when he replies. Payment, no matter how much or when it is made, should not be tolerated.
I am particularly worried about the other three surrogate children who are due shortly. Unlike the hon. Member for Leyton (Mr. Cohen), I believe that the Government acted quickly because they had to. The legislation has not been rushed, but it is both sensible and sound. It has been introduced speedily because we knew of those three children and of the potential for further children being born in that way in America and elsewhere. We need to eradicate commercial surrogacy.
The practice is sick, as is any sort of womb leasing. I can understand that some women may be terribly hard up. For the first time in my life I agree with the hon. Member for Oldham, West (Mr. Meacher) that women in poor income brackets may be easily tempted, not merely because they wish to buy a car but because they need money to survive. The financial gain was a serious temptation. Although I sympathise with those who were tempted down that indelicate route, I hope that the Bill will deter people from so doing in future.
Clause 2 adequately covers the full role of commercial surrogacy and particular practices. I understand the past system in Scotland, and the fact that many arrangements have been carried out within a family where one sister has had difficulty in bearing a child. When I criticised surrogate motherhood, I received a letter from a constituent who said that the first surrogate mother was the Virgin Mary. I do not know about that, but the practice continues.
I admire much that is done in America. It is a great innovator, but surrogate motherhood is one type of 43 experiment that need never have arrived on our shores. I hope that one day we shall do away with surrogacy altogether. I hope that an opportunity to achieve that may arise with the follow-up to the Warnock report. I fully appreciate, however, that that will be some time in the future and that that would be a tremendous commitment for my right hon. and learned Friend to give the House today. But at least the Government have given some commitment and have encouraged motherhood within the family and within normal practices.
I ask the Secretary of State to consider the implications of deferred payments by charities. There is a definite risk that, perhaps six years later, a payment could be made to the surrogate mother. I welcome the offences created by the Bill, and the imprisonment terms and fines that it provides, which are realistic and which will act as a suitable deterrent. I should be interested to know when the legislation will be enacted, although I appreciate that it must go through further stages in the House and in another place.
Like the hon. Member for Berwick-upon-Tweed (Mr. Beith), I believe that we should make provisions so that a child can find out the identity of his mother. Certainly all children at the age of 18 should be allowed to discover the identity of their natural mothers. I hope that my right hon. and learned Friend the Minister for Health will set out out the Government's thinking on that.
I am also a little worried about the woman who agrees, whether there is a contract or not, to carry a child and who, for nine months, is clearly pregnant. She may have other children at home, and I am worried about their reaction when she goes into hospital but then returns without a child. We must think carefully about how that will affect the other children. Will they be told exactly what happened? They may think that the child has died. They may have been extremely excited, looking forward to having a baby brother or sister. I am worried about the psychological problems that could be caused.
Today the Government have shown how much they care about children and childbirth. They have put the interests of the child above everything else. As I said earlier, it is a great privilege for anyone to have children. In my family, we are still waiting, but we shall be patient and carry on in the normal way. I welcome the Bill because it acts as a warning to prospective surrogate mothers that they must not succumb to the temptation of material and financial gain. I also welcome it because it will prohibit surrogacy agencies. I hope that American magazines will no longer advertise those agencies in Britain, which will prevent people from going to America and making such financial arrangements there.
This is a good Bill that will preserve family life, stabilise society and do away with this unnatural and unfortunate practice which has sickened so many decent-living and family-loving people. For that reason alone, I welcome the Bill.
§ Mr. Harry Greenway (Ealing, North)
Although I cannot follow the line of my hon. Friend the Member for Leicester, East (Mr. Bruinvels), I hope that he and his wife will have the joy of parenthood before very long. We are 44 all delighted to hear that they intend to pursue normality. As the father of three wonderful children, I can testify to the joys of parenthood.
I, too, welcome the Bill, but I regard it as only a small first step in a most important area. Hon. Members have mentioned the position of childless couples, and rightly so. Athough the welfare of the child must come above all things—I was glad to hear my right hon. Friend the Secretary of State and most hon. Members who have spoken agree with that — the position of childless couples is also central to the issue. We must think carefully about childless couples who are anxious to have children by adoption or by other means, and I believe that the country has a sympathetic view of their problems.
Everyone who has had the privilege and honour of having a child must sympathise deeply with couples who are happy in their marriage and devoted to each other but who have not been blessed with the joy of children. Their position is central in the area to which the Bill relates. Will their needs be met more by individual surrogacy than hitherto? The answer is probably yes, but we must consider the morality of that.
I know from my long experience of and interest in children for adoption that there is an enormous shortage of such children, largely because of the consequences of the Abortion Act 1967. The present abortion rate—there have been more than 2 million since 1967—combined with more efficient birth control methods has meant that far fewer children are available for adoption. Therefore, not a council in the land, nor an agency dealing with the adoption of children, does not have an enormous waiting list of impressive couples who wish to adopt children but who are, for the most part, frustrated in that wish. The reduction in the number of children available, because of abortion and improved pregnancy prevention, may mean that couples will be tempted to seek surrogate mothers. However, I am glad to know that they will not be able to do so through agencies which wish to exploit them for gain.
The other day I read about an American agency which published somewhat grotesque advertising material for the services of surrogate mothers that it was offering at considerable expense to childless couples. It said, for example, that its women were better looking than many others, that they were tested for the quality of their health and tested for the quality of their brains. That is a terribly crude way of approaching the matter and is a great indignity to women. Few hon. Members would support such approaches, and I would certainly not be one of them.
The Bill will mean that we shall not have such advertising in Britain, and for that I am grateful. However, as I said in the first intervention in the debate, I am worried that some women will be tempted to exploit themselves as individuals. They will be tempted to offer themselves as surrogate mothers because they may need the money, or believe that they need money, for many things. The lady who acted as a surrogate mother for Baby Cotton said that she needed the £8,000 for a new three-piece suite, or something like that—
§ Mr. Greenway
My hon. Friend is right. Everyone could find a use for some extra money that might come his or her way. I fear—I believe that the House will share my fear—that some women will be tempted to exploit 45 themselves because they feel the need for new furniture, an extension to their homes, clothes or things for their existing children. Sadly, the Bill does not protect individual women against such self-exploitation, although it prevents their exploitation by an agency and, therefore, by society. It is a very doubtful moral proposition for a woman to be asked to carry a baby for financial gain. I am sorry that we have not heard the churches speaking out on that issue and giving a moral lead throughout the nation—
§ Mr. Greenway
I cannot accept what my hon. Friend says. They have not given the moral lead that would hit the headlines.
We must consider the delicate position of children born through individual surrogacy, which will be permitted by the Bill. Should they be told that they were born to surrogate mothers? What will be the effects of that knowledge? What will happen if they are not told about their background and the fact that their surrogate mothers may or may not have been paid for the job, to put it crudely?
Will those children be in the same position as adopted children who are rightly told about their adoption? There was a time when adopted children were not told about their background. There are many people in this country who were adopted from the cradle but who do not know that. Indeed, their adoptive parent may have forgotten that fact. What moral lesson should we learn from that which we can apply to a child born to a surrogate mother?
Who should be responsible for counselling couples seeking a child by surrogacy? Will it be the local council, the National Health Service local board, the local churches, a charity or the neighbours? Who will counsel the surrogate mothers? When the Bill is in Committee, it will need to be considered in some depth and the very important personal and moral points will need to be borne in mind.
I welcome the Government's leadership on this matter. However, if we do not bear in mind the personal and moral points the House may be guilty of producing a Bill that will rightly outlaw the hell and wickedness that exists in America—where women are exploited and handled in an undignified manner for gain—but at the same time forget that individual women are not covered, whether or not they are acting on their own behalf, in response to social or financial pressures or even in response to pressure from husbands who may see surrogacy as a way to make money. That whole area needs to be carefully considered. I hope that when my right hon. and learned Friend replies he will comment on the points that I have raised.
§ Mr. David Amess (Basildon)
I apologise to my right hon. Friend the Secretary of State and the hon. Member for Oldham, West (Mr. Meacher) for not having been present during their speeches. I was visiting a sewage works in my constituency in an attempt to ensure that the smells coming from the works will be more pleasant throughout the summer.
I join other hon. Members in wishing my hon. Friend the Member for Leicester, East (Mr. Bruinvels) and his wife every success in being blessed with a child. I wish gently to take issue with my hon. Friend the Member for 46 Ealing, North (Mr. Greenway), who made one or two comments about the churches. I understand that my church —the Catholic church—the Council of Churches and the Church of Scotland have spoken out strongly against the whole concept of commercial surrogacy. The problem is that they have not received publicity. It is unfortunate that one or two members of the churches receive a great deal of publicity for the rather silly things they say—
§ Mr. Greenway
I accept what my hon. Friend says. I said that some churches have not spoken out strongly, but I accept that some have done so. They have not received the publicity that they should have received, so my hon. Friend has made a fair comment.
§ Mr. Amess
I thank my hon. Friend for his comments.
Those of us who are parents speak from a privileged position. We have been blessed and entrusted with the responsibility of parenthood, and with that the agony and ecstasy of bringing up children. We are unable completely to appreciate the anguish felt by many couples who cannot bear children. My support last year for the ten-minute rule Bill to outlaw surrogacy, introduced by my hon. Friend the Member for Renfrew, West and Inverclyde (Mrs. McCurley), resulted in my learning at first hand of a number of distressing cases of couples unable to bear children. Their despair cannot, by any stretch of the imagination, be over-estimated. Quite naturally, they are sometimes prepared to go to any length to have a child.
Although the House recognises that, it still has a responsibility and an obligation to uphold the sanctity of life and to outlaw the practice of surrogacy. My right hon. Friend the Member for Old Bexley and Sidcup (Mr. Heath), a former Prime Minister, once referred to the unacceptable face of capitalism. That phrase achieves its ultimate meaning in the buying and selling of a human being, which is a most degrading concept.
I am delighted that the Government, inspired and prompted by my hon. Friend the Member for Renfrew, West and Inverclyde, have introduced the Bill. It is crucial for the protection of family life. My concern for the family, and especially for children, begins from the moment a child is conceived. At that very moment of conception, a new individual is created. Hon. Members know that I strongly oppose all procedures that harm unborn children from the time of their creation. The welfare of the child at every stage of his or her development must be the first consideration. Therefore, it would be quite inconsistent not to oppose surrogate motherhood, which is a further erosion of family life with unknown emotional and psychological consequences for the child.
If commercial surrogacy were allowed, it is inevitable that we should create a class of woman who would he seen simply as breeding machines. It is doubtful that such women, attracted by the lure of money, would be aware of and able to cope with the inherent difficulties that stem from surrogacy. The results would be pitiful. The words of an Australian mother, who found herself unable to hand over the baby she bore for another woman, sum up the whole issue and that unnatural situation:It goes against every physical and emotional feeling. The only thing the stand-in mother can get out of it is money but no amount can compensate for what you have done.It is impossible to consider childbearing in a detached and clinical fashion. While throughout the nine months of pregnancy the unborn child is linked to the mother in the 47 most intimate way, he or she is a completely separate individual growing within the womb. The mother acts as a source of protection, providing nutrition for the child she is bearing. The mother's body adapts through hormonal changes to accommodate the new being that lies within her. It is entirely unnatural for a woman to suppress the maternal instincts that she no doubt feels.
When a child is born, he or she is not an anonymous being. The baby has been alive for nine months and has had those months of experience in the womb. The mother will have felt the baby moving and responding in various ways. The baby cannot be treated as a commodity, to be ordered and delivered. Nor should women be treated like manufacturers whose sole purpose is to come up with the goods.
The unpredictable human factor is at its highest in surrogacy, and no woman can know how she will react on being requested to hand over the child whom she has carried for nine months. Commercial surrogacy is repugnant in its view of human beings as objects that can be bought and sold.
I found totally unacceptable the Warnock recommendation that human embryos might be bought and sold under licence. I cannot differentiate between a human embryo and a newborn baby; they are both human beings at different stages of development. It would therefore be inconsistent if I did not condemn surrogacy, which reduces human beings to saleable commodities.
A distinction, however, must be made between surrogate motherhood and adoption. In the latter, a woman takes over the care of an existing child, a child born to his or her genetic mother. That is different from deliberately creating a child in a planned way which introduces unnecessary social confusion for the child. An adopted child is in no doubt of his genetic and social origins. He can clearly define his place in society.
A child produced to order by another woman is caught between the woman who carried him for nine months and who is his genetic mother, the father who is not married to, or is in no way involved with, the genetic mother, and the woman who will bring him up and whom he will address as "mother", a title which she has bought.
The present law leaves the father who provided the sperm without parental rights because the child is illegitimate. He could adopt the child and claim parental rights, but that would be illegal because of the fees paid to the agency and to the surrogate mother. For a child to enter the world amid a scene of emotional, social and legal chaos is completely wrong, and commercial surrogacy must be stopped to prevent that happening.
I am delighted to say that, by introducing the Bill, the Government are at long last following the flow of public opinion on this issue. There can be no doubt that the gut reaction of the public is against commercial surrogacy and the whole concept of surrogate motherhood.
Among the harshest critics of surrogacy is the National Association for the Childless. Brenda Halliday of that organisation has described surrogacy as "exploitation at its worst". If this idea of commercial surrogacy has travelled across the Atlantic, it can return whence it came.
While I and many others were surprised and disappointed at the Government's neutral stance on the Unborn Children (Protection) Bill, this legislation will serve to uphold the dignity of women and children. It goes 48 to the heart of my overall belief that the interests and wellbeing of the child at every stage of development should come first and that women should not be degraded in any way.
§ Ms. Jo Richardson (Barking)
This has been an interesting wide-ranging debate, made all the more interesting by the intimate atmosphere, as it were, in which it has been conducted. Because few hon. Members have been in the Chamber, we have been able to listen closely to what has been said, and even, in some instances, to what hon. Members have been thinking, as exemplified by some of the spontaneous interruptions.
The contributions to the debate have covered the full spectrum of the subject. For example, my hon. Friend the Member for Oldham, West (Mr. Meacher) welcomed the Bill, as I do, because of the nastiness—that is not too severe a word to use for the profit-making element of surrogacy —of the whole problem. However, we take the view that surrogacy should not necessarily be outlawed. We want time to consider, sensitively and slowly, all the implications.
At the other end of the scale, we had the speech of the hon. Member for Basildon (Mr. Amess), who is antiabortion in every respect and is anxious that the protection of the law should be given to the embryo from day one, with surrogacy being completely outlawed. I hope that the Government will adopt a steady-as-she-goes attitude and will retain the central point of the Bill, which is to keep the legislation narrowly to the framework of outlawing commercial surrogacy, so giving us time to consider all the other problems that are involved.
Surrogacy is after all, only one part of the whole problem of infertility, and most hon. Members acknowledge that infertility is a real problem. If we say that surrogacy must be legislated against because it is wholly wrong, we shall inevitably cast some parents into a form of limbo from which they will not be able to benefit in any way, for example from any other form of infertility treatment.
We should pay attention, and give more funding, to the whole question of infertility. Simply to say that surrogacy is wrong and must be legislated against will not do. First, such legislation would not work and, secondly, even if it could be made to work, it would be undesirable. A better way to deal with the problem is to reduce the necessity, in the view of some people, to resort to surrogacy. I am glad, therefore, that the Bill is confined to the profit-making and commercial aspects of the problem.
As the hon. Member for Berwick-upon-Tweed (Mr. Beith) pointed out descriptively, surrogacy has existed throughout history. For us now solemnly to think that we can stop it would be like trying unrealistically to turn the tide. Indeed, for us to attempt to do that might have some adverse effects. For example, it might send the practice underground, and that might result in more surrogate mothers and commissioning parents going elsewhere, perhaps across the Atlantic, to achieve their heart's wish. We would not want to do that.
I hope to be a member of the Standing Committee which will examine the Bill. That will be the occasion to discuss certain matters in detail. However, it is important for us now to cast a critical eye over some points which have occurred to hon. Members.
49 I firmly reject the notion of allowing profiteers to prosper. However, there is a necessity for some legal arrangement between a commissioning couple and a host mother. I cannot see any moral or legal problem about employing the services of a solicitor. I understand that there are agencies in the United States of a sort that we do not like which claim that they are merely tying up the legal ends. I do not believe that. I believe that they are involved for the money. If they are handling the legal part of the arrangement, that is the least that they can do for the money that they are making out of the arrangement.
When families are faced with problems the individuals concerned will consult a solicitor. When surrogacy is proposed, why cannot the commissioning couple and the host mother say to a solicitor, "We want to come to an arrangement between the three of us that will protect the rights of the couple, the rights of the host mother and the rights of the child?" Why cannot a legal agreement be drawn up that will have that effect? We use solicitors when a divorce is sought. When a woman is beaten up at home, she will go to a solicitor to obtain an injunction against her battering husband. She is not shunned by society and treated with disdain because she has put money into the hands of a solicitor by instructing him to obtain an injunction. Surely a legal contract could be drawn up to protect the rights of the commissioning couple and the host mother without causing the solicitor to commit a criminal offence under the Bill?
It is crucial that both the commissioning couple and the prospective host mother receive some counselling. If we were to outlaw surrogacy, we would make it impossible for any counselling to take place. The couple will have discussed the matter between themselves, and possibly with relatives, and they should have the opportunity to discuss the matter with expert counsellors so that they are sure that they are doing the right thing and that they know how to go about it.
More importantly, it is crucial that the host mother should have the opportunity to receive counselling. She, too, will have problems. It should not be said that she is merely in it for the money or that she is an exploited person. Many reasons lead a woman to take this course, some of which we may never know or understand. The host mother should have the opportunity through the local authority, a non-profit making body or a social work agency to receive proper counselling.
As I read the Bill, a solicitor who drew up a legal document to protect the commissioning couple and the host mother, or a person who counselled them, would be caught by its provisions. A doctor, for example, might be asked to give some medical advice to the host mother and he may receive a fee from a non-profit-making agency for doing so. Will he be caught by the Bill?
There are many loopholes which could be dangerous and I ask the Minister to let us know where we stand when he replies. If he agrees that there are some loopholes, we can try to close them and ensure that there is proper surrogacy prior to the Government introducing the wider Bill which they have promised, which will appear much later. I remain concerned about doctors and counsellors, for example, who will receive fees for their services.
It seems that in this instance we are moving away from the principle of trial by jury. This issue was raised on the "Agenda" page of The Guardian this morning. As I am not a lawyer, the point had not struck me, but I believe now that it is one worthy of consideration. The Bill provides 50 a maximum of three months imprisonment or a fine of £2,000, which are penalties which do not enable the person accused to opt for trial by jury. I understand that there has to be the possibility of a sentence of imprisonment of six months before one can seek trial by jury.
Those who are accused of having committed an offence within the terms of the Bill might very well want trial by jury so that ordinary men and women can listen to their story, whether they are the individuals involved or those concerned indirectly. I am not suggesting that the maximum penalty of three months imprisonment should be increased, but we must consider the option of trial by jury if the accused wishes to have that sort of hearing
I have expressed some reservations about the wording and intent of some parts of the Bill, but I reiterate that I am in favour of it. Bearing in mind the agreement that there appears to be on both sides of the House, I shall be surprised if there is a Division.
I am left wondering whether the Bill would have been produced if it had not been for the distasteful publicity which surrounded the Cotton case and the natural public reaction to it. Surrogacy has been taking place for a long time but it is only since 1982 or 1983 that it has become a known word to the ordinary public. Suddenly, and perhaps because of one unpleasant and distasteful case, at least in the United Kingdom, people have gone beserk, as it were, about it. If that case had not arisen, would the Government have introduced the Bill?
I look forward to reading the wider Bill that the Government intend to produce in due course that will incorporate many of the recommendations of the Warnock committee.
Surrogacy appears to be a necessity, or an option, for some infertile couples. It is crucial that commissioning couples and host mothers should be afforded some form of legality and should not be made to feel that they are outcasts of society. I was appalled when the hon. Member for Leicester, East (Mr. Bruinvels) said that surrogacy was a sick practice. If I had heard him say that as one of an infertile couple or as a host mother, I would have felt cast down. Surrogacy may not be a practice in which we all want to indulge, but it should be afforded some respect. If three people have thought about the matter deeply and have decided that that is the way in which they want to proceed because there is no option, they should not be rejected by society.
§ Mr. Peter Bruinvels
The hon. Lady should have put my comment in the right context. I said that I considered surrogacy to be a sick practice when money was involved. When that happens, I find it repulsive. Surely the hon. Lady will agree that a financial transaction to secure the lease of a woman's womb is repugnant.
§ Ms. Richardson
Perhaps the hon. Gentleman will look at his speech tomorrow to ascertain whether it reads in that way. I listened carefully to the hon. Gentleman's speech. He rightly referred to the profit-making angle. My impression was, however, that he thought that surrogacy was a distasteful practice. I want to ensure that, after the passage of this Bill, we treat surrogacy with sensitivity and give time not only to the Government, without pressurising them to draft the legislation properly, but to hon. Members so that all the implications are considered and so that we do not deal piecemeal with a subject of great concern to a large number of people.
§ The Minister for Health (Mr. Kenneth Clarke)
At various times the Government have been praised for the speed with which they have brought forward the Bill—my hon. Friend the Member for Bournemouth, West (Mr. Butterfill) praised us—and at other times criticised. A considerable number of points have been raised about the circumstances in which the Bill has been brought forward and about whether it has been wise to select this one narrow aspect of the huge combination of difficult ethical and moral issues that were addressed in the Warnock report. I am glad that, despite all the reservations about the legislation, every hon. Member who has spoken in the debate has revealed that he or she comes down on the side of the Bill and is likely to support it.
This is not a new issue, and the Government have not approached it with unnecessary or reckless speed. We have acted decisively and in a way that commands the support of the majority of the public, without prejudicing what the hon. Member for Barking (Ms. Richardson) has rightly said needs to be a thorough and well-digested debate on many important and complex matters before an even larger Bill comes forward.
The hon. Member for Berwick-upon-Tweed (Mr. Beith) took all prizes for biblical scholarship by reminding hon. Members in greater detail than most of us recall—although we are all familiar with the outline of the story—of the problems of Abraham and his family. This is not such a new issue as some hon. Members imply in suggesting that the Government brought this measure forward only in response to the newspaper publicity that had surrounded one, albeit important, case — that of Baby Cotton. In fact, some time ago, the Government expected that that issue, along with many other related issues, would cause Parliament and the public much trouble. For that reason, my right hon. Friend the Secretary of State invited Lady Warnock and her colleagues to consider all those related issues.
We initiated the giving of evidence, the consideration of that evidence by the committee and the presentation of the report's conclusions for wider public debate. Those conclusions included conclusions on surrogacy. The members of the Warnock committee were drawn from a wide background and had a wide range of professional expertise, personal and religious beliefs and outlooks on life. They were unanimously against the practice of commercial surrogacy but were, by a majority, against surrogacy of all kinds. That has been the tenor of the debate this afternoon, and I believe it is likely to be the tenor of general public opinion. We were addressing ourselves to the issue when we set up the Warnock committee.
During the last Session of Parliament my hon. Friend the Member for Renfrew, West and Inverclyde (Mrs. McCurley) produced a private Member's Bill seeking to make surrogacy illegal. My hon. Friend would have pressed that legislation on to the statute book but for a lack of parliamentary time. That is what happens to many private Members' Bills. I remember having conversations at that time with my hon. Friend, urging her to wait until we had the views of the Warnock committee and arguing against a Bill dealing with surrogacy alone in advance of other issues. We were talking before Lady Warnock's committee had even reported.
52 The Warnock committee reported and all its members favoured making commercial surrogacy illegal. I have no doubt that my hon. Friend the Member for Renfrew, West and Inverclyde would have introduced her Bill yet again and placed further pressures on the House this year if it had not been made clear that the Government were converted to her point of view and were, in the light of the Warnock report, about to take action.
About 90 per cent. of those who have given us their opinions so far are against commercial surrogacy—as this Bill is. As my hon. Friend the Member for Basildon (Mr. Amess) pointed out, all the churches gave their opinions against commercial surrogacy. The Church of England, the Church of Scotland, the Free Church, the Methodists, the Roman Catholics, the Salvation Army and the Chief Rabbi have indicated that they agree with the Warnock conclusions against commercial surrogacy.
The Baby Cotton case was not a sudden, isolated incident which gave rise to rushed legislation. That case served to underline to the general public what was already becoming apparent to Ministers and to hon. Members—that something had to be done urgently about commercial surrogacy problems. As my hon. Friend the Member for Leicester, East (Mr. Bruinvels) reminded us, we are fairly certain that three other pregnancies have taken place as a result of commercial agency arrangements. In the next few months those children will be born. Obviously, the Bill will not affect those arrangements or taint them with criminality retrospectively.
It became even more important to act to ensure that a small, albeit thriving, industry did not develop, whereby agencies began to operate here, largely for Americans who wanted children, offering fees to mothers in this country to lease their wombs and by surrogacy provide a couple with a child.
The background to the legislation is not one of rush or of over-reaction to public issues, as the hon. Member for Oldham, West (Mr. Meacher) implied. A clear and consistent course of action by the Government has enabled us to identify at least this one narrow issue among all the important issues examined by Warnock. The time has come to invite the House to pass speedy legislation.
The debate has underlined the Government's judgment that this was the right action. There is rarely unanimity between both sides of the House about a Bill's basic aims. Every hon. Member has made it clear that he or she will support the Bill on Second Reading. The unanimity does not require any underlining by me. Whatever the angle at which one looks at the arrangements that commercial agencies might undertake in relation to surrogate motherhood, there are substantial dangers for all the parties involved and for society as a whole.
Hon. Members showed a slightly different emphasis in the particular party that they were seeking to protect. In some circumstances one can envisage any one of the parties being potentially a victim of the unwise decision to participate in a commercial arrangement of this kind. The surrogate mother may be exploited because of her financial needs or vulnerability and may be tempted to participate in an arrangement that she bitterly regrets. She may undoubtedly be a victim of the arrangement set up by the agency.
Some of the would-be parents may be victims. Some couples are desperate to have children. We all know of the heart-searching and the agony of some people who are unable to have children. As my hon. Friend the Member 53 for Renfrew, West and Inverclyde said, sums of up to £20,000 are sought from people for surrogacy arrangements so that they can ensure that at least one of them has his own child by fathering the child by a surrogate mother.
Most importantly, we are all concerned about the children who could be the tragic victims of arrangements entered into and organised by agencies for purely commercial reasons. The children could be the victims of a battle between the two sets of parents about who will exercise parental rights, or the three parents could reject the child and say that they no longer wish to have it because something has gone wrong.
As my hon. Friend the Member for Renfrew, West and Inverclyde said, the remainder of the family, including other children of the surrogate mother or the would-be parents if they had adopted other children, could be adversely affected by the possible consequences if a commercial arrangement goes wrong. For all those reasons, it became apparent during the debate that we had succeeded in defining at least one narrow part of the subject—whether we wish to see commercial agencies establish themselves and negotiate agreements offering fees to those who take part—and establishing unanimity that the criminal law was required to ensure that that did not happen.
Unanimity extends only to the general points. The Government were asked a number of detailed points about the Bill, and they will plainly be dealt with in Committee. I shall not deal with them all in depth now. I hope hon. Members will forgive me if I do not do justice to the points which have been raised. We will return to them in Committee.
The hon. Member for Oldham, West queried the provision contained in clause 3(2) which attaches absolute liability to the proprietor, editor or publisher of a newspaper or periodical which carries an advertisement offering surrogacy. He implied that it was somewhat harsh that it should be a criminal offence for the proprietor, editor and so on to produce a newspaper containing such an advertisement. We shall return to this point later if it is necessary, but that provision is essential to make the ban on newspaper advertising effective.
Newspapers and periodicals are used to the practice of hiring people to read their copy to ensure that they do not render themselves liable to legal action for what has appeared in the newspaper. If it were necessary to establish that the proprietor knowingly published the advertisement, it would be far too easy for him to say that no one had thought of the point, that it had been overlooked and that no one had read the advertisement with that point in mind.
Absolute liability will ensure that the newspapers take the precautions they usually do to protect themselves against libel and all the other risks they run. We knew what we were doing when we made publication an absolute offence. If the hon. Gentleman presses that amendment in Committee, he runs the risk of making that part of the Bill ineffective.
My hon. Friend the Member for Bournemouth, West asked whether the Bill prevented donations to charitable surrogacy agencies which would collect money but claim that they were doing so for non-commercial reasons—for some greater cause or to plough back into the agency's work. Subject to any further thoughts that I may have before we reach Committee, my answer is that the Bill would prohibit such payments. The terms of clause 2(5) are so wide that such payments are caught if they are made 54 by the surrogate mother, the commissioning parent or someone connected with either of them. That is one of the purposes of clause 2(5).
My hon. Friend the Member for Leicester, East asked what would happen if payments were deferred until some considerable period after the birth and after the rights over the child had been handed over. Subject to any further examination in Committee, we believe that the Bill deals with that point and prohibits such payments, because under clause 2(3) payments are prohibited "at any time". That would include deferred payments of the sort that my hon. Friend feared.
The hon. Member for Barking asked what would happen if there were a voluntary surrogacy arrangement among three parties who were not contemplating any commercial' arrangement, and they had the services of a solicitor to give them legal advice about drawing up a contract, or the services of a professional person to give general counselling, and contemplated paying a fee for such advice. Any solicitor, professional person or anyone contemplating doing anything for a fee for the parties involved would have to study the Bill carefully before giving any such advice. The answer is to be found ir. clause 2(1)(a), (b) and (c). That part of the Bill defines what the illegal acts will be if surrogacy is negotiated commercially by anyone.
It is arguable that if someone is giving general advice and counselling for a modest fee, they would not be committing a criminal offence. The Bill prohibits negotiating a surrogacy arrangement or taking part in negotiations which have a surrogacy arrangement in view. It also prohibits bringing together information to enable someone to put couples in touch with one another.
If advice fell short of negotiating an agreement, it is possible that arrangements could be entered into between a couple who wished to commission a surrogate child and a professional person without falling foul of the Bill. The moment that the solicitor began to negotiate a surrogacy arrangement, he would be caught by the Bill.
I am sure that the subject of jury trial will be raised in Committee. It was raised by—
§ Mr. Clarke
I was about to deal with the hon. Member's point. I agree that it is relevant. It is our view, on advice, that such contracts are not enforceable now. If anyone went to the courts in this country seeking to enforce a surrogacy contract— if someone brought an action to try to compel an unwilling surrogate mother to hand over the child or if the surrogate mother went to court to try to compel the would-be parents to pay the fee promised under the contract—it is confidently felt by most people, as the Warnock committee felt, that such a contract would be regarded as unenforceable by the courts and contrary to public policy. It might be helpful fcr that point to be put beyond doubt in statute at some stage, because, although that is believed to be the position, there is no point in sitting around waiting for a test case, with all the problems that would surround such a case for the parties involved.
55 My right hon. Friend explained the policy behind the Bill. When producing the Bill, the Government set out to make it as narrow as possible to carry unanimity and to guarantee the speedy passage through the House which we think is essential. I do not, therefore, want to encourage amendments in Committee. I cannot be forthcoming about amendments at the moment. If, however, it turns out in Committee that there are narrow points that fall within the scope of the Bill, which command universal support, as the main policy has, and which are easily dealt with in drafting and other terms, the Government will consider them sympathetically to see whether we might have made the Bill too narrow and misjudged the mood of the House. If there is unanimity we might consider whether the Bill might be extended, but there will not be many such points.
The remainder of the debate related mostly to the wider issues of Warnock. A number of my hon. Friends asked why the Bill is so narrow and aimed only at commercial agencies and advertising. They asked why we had not taken the opportunity to go ahead, as they would wish, with making all surrogacy arrangements of any kind unenforceable. My right hon. Friend the Member for Castle Point (Sir B. Braine) felt most strongly about that matter. Indeed, the hon. Member for Oldham, West criticised the Government for acting so narrowly, for not having taken the opportunity to grapple with some of the wider issues in Warnock and for not having looked at surrogacy generally.
I agree entirely with the points made by all hon. Members, that there are very important questions for the House to resolve — for example, the legal status of children, how to sort out the problem of legitimacy and illegitimacy and the position of the child who wishes to know the exact circumstances of his birth. This issue has not been legally resolved. For example, what would happen if a child who had been adopted following a surrogacy arrangement sought to take advantage of the recently enacted legislation and tried to find out the full circumstances of his or her birth and the identity of the surrogate mother? These, and many other issues, were raised, but the hon. Members who raised them almost answered themselves because of the way in which they disagreed with one another.
The hon. Member for Oldham, West, my right hon. Friend the Member for Castle Point and a number of my hon. Friends gave different opinions about the legislation they thought necessary in the case of unpaid surrogacy. The hon. Member for Leyton (Mr. Cohen) postulated the state making payments to surrogate mothers. This was the furthest we went in one direction. My hon. Friend the Member for Bournemouth, West put forward a very interesting proposition dealing with a point made by another of my hon. Friends: that one cannot stop purely private arrangements of the kind first started by Abraham, 56 so far as history recalls, but that at least it should be possible to prohibit all procurement by agencies and prevent the negotiating and advertising of these arrangements by anybody. However, the debate showed how difficult it would be to resolve these issues.
It will not be possible to obtain unanimity. The House genuinely reflects the very wide range of opinion which is found to exist among all interested sections of the general public. Not only is it difficult to obtain unanimity, whatever decision the Government first suggest and the House eventually makes will require great care and precision in its drafting and formulation. Before a Bill can be produced for the House to contemplate, a great deal of work will be required. The drafting of so complex a Bill will be a substantial undertaking. However, I can assure the House and my right hon. Friend that the work is in hand and that our desire is for such a Bill to be brought before the House as soon as possible.
It would be folly to try to say when, because of the complexity of the subject and the pressures on the parliamentary timetable for a Bill which will be a fairly lengthy undertaking, given all the hon. Members who have spoken today, should they wish to take part. However, the Government hope to bring such a Bill before the House during the lifetime of this Parliament and to give all hon. Members the chance to deal with those issues.
I hope that the House will take the decision which my right hon. Friend invited it to do when he introduced the Bill, and to leave on one side, without minimising them, the strongly held views about other aspects of surrogacy and the position of children and to say that this narrow point is so important that there should be a speedy end to commercial agencies and a quick suppression of any more Baby Cotton cases. I hope that opinions can be left on one side when it comes to giving this Bill a reasonably speedy passage through the House.
My hon. Friend the Member for Leicester, East asked when this Bill will come into force. It will come into force immediately after royal assent. However, when it receives royal assent is in the hands of all hon. Members, in particular in the hands of those who are selected to be members of the Standing Committee. I hope that the Bill will receive an unopposed Second Reading and that it will be an omen for a reasonably quick passage of the Bill. I believe that the general public will welcome the fact that on this very important moral issue, which has given rise to serious public concern, the House of Commons and the Government are totally in step with them and that we have shown that we can act in order to stop something which, if left untouched, will run the risk of becoming a grave moral problem.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 42 (Committal of Bills).