HC Deb 13 May 1985 vol 79 cc115-33 10.22 pm
Mr. Michael Meadowcroft (Leeds, West)

I beg to move amendment No. 1, in page 2, line 20, at end insert—

'(10) In any contract for a surrogacy arrangement, no part of the contract shall be enforceable at law which requires a surrogate mother to hand over a child to another person or persons.'.

We had a long debate in Committee on a number of issues, in the best possible spirit, while endeavouring to grapple with the immense complexity of the whole issue of surrogacy, and especially about the detailed items drawn out of the general debate about Warnock and about embryology and surrogacy as embodied in the Bill.

There is a general consensus among hon. Members that we do not want the delicate and intimate arrangements that might be made about surrogacy to be subject to commercial gain or even commercial contracts. Together with the hon. Member for Barking (Ms. Richardson) and other Committee members, I sought to probe the Government's view on a number of delicate and specific issues. The Government's responses, to some extent, went to the heart of the amendments, and in each case they were not pressed to a vote. It is because of the only partial response to some of the issues that have I tabled the amendment.

On Second Reading my hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) raised the whole question of the enforceability of contracts. The Bill leaves somewhat vague the question whether any contract should be enforceable in law. It has left open the question whether someone could take to court the case person who had sought to enter into a financial contract or—and this is the ground of the amendment — whether a surrogate mother should be forced to give up the child. The Secretary of State seemed to take the view that the law as it stood was clear and that no such contract—a contract to hand over the baby or the money — would be enforceable in the courts. My hon. Friend then asked the Minister whether, if he had any doubts on the point, some provision should be included in the Bill. No such provision has been made, so we are left with an ambiguity.

Replying to the debate on an amendment tabled by me in Committee upstairs when I probed the question whether any contract for a surrogacy arrangement would be enforceable by law or against any persons making it, the Minister responded that while the question of the entire enforceability was an issue about which strong feelings were held — indeed, the Warnock committee had recommended that no contract under any surrogacy arrangement should be enforceable and that any such arrangement, commercial or non-commercial, should be made illegal—in his personal opinion it should be made unenforceable for the mother to be compelled to hand over the child. He went on to say that nobody wished to see a surrogacy contract enforced, with a surrogate mother who changed her mind being obliged to hand over the child. That, he said, was straightforward.

Because the Minister made comments such as that, I have tabled the amendment. I am testing whether it is possible to distinguish between undue pressures being brought to bear on a surrogate mother and a financial arrangement which might be sought to be enforced in the court. It is reasonable to say that the whole question is highly charged with emotion. It is said that in certain circumstances it should not be illegal for a woman to bear a child for another woman. If it is said that, within a close family or, indeed, a close friendship, we would not wish by legislation to make such an arrangement illegal, we must go on to consider the question whether it is possible to exert undue pressure on the woman involved in that arrangement.

Given the delicacy of the issue and the emotion involved, our view is that such an arrangement should not be enforceable by law if the surrogate mother decides at the end of the pregnancy that she does not wish to give up the child. I understand that that is also the view of the Minister. That being so, we thought it wise to test the view of hon. Members on the issue, in particular to see whether our view and that of the Minister would gain the approval of the House as a whole.

Mr. Peter Bruinvels (Leicester, East)

Having been a member of the Committee which considered the Bill, of which I am strongly in favour, I could not understand why the hon. Member for Leeds, West (Mr. Meadowcroft) had tabled the amendment. Indeed, having heard him move it, I see neither the need for it nor how it would be enforceable. It says: In any contract for a surrogacy arrangement, no part of the contract shall be enforceable at law". What is the point of an amendment that is not enforceable at law? The handing over of a child is something that we do not want to happen in the first place. I should have thought that the point was amply covered by clause 9, which provides that the Act applies to arrangements whether or not they are lawful and … are enforceable by or against any of the persons making them. That seems perfectly satisfactory to me.

Mrs. Jill Knight (Birmingham, Edgbaston)

There is no clause 9 in the Bill.

Mr. Bruinvels

Yes, there is. Clause 9 is already in the Bill as drafted.

Mr. Meadowcroft

Perhaps I can assist the hon. Gentleman. I think that he means subsection (9) of clause 1. The Bill has only five clauses.

Perhaps the hon. Gentleman will also explain what he means when he says that something is not lawful. I thought that the whole purpose of introducing the Bill was to make law.

10.30 pm
Mr. Bruinvels

Yes, I meant subsection (9) of clause 1. I should have thought that that was clear. The amendment refers to page 2, line 20, and that is the part of the Bill to which I am referring. Subsection (9) states: This Act applies to arrangements whether or not they are lawful and whether or not they are enforceable by or against any of the persons making them. The Bill as drafted seems to cover all the points that we debated in Committee. What is the point of amendment No. 1 when subsection (9) already makes the position clear? Subsections (1) to (9) deal with the contracts and their legal effect and I am confident that the Bill as drafted, as we debated it on Second Reading and in Committee, defines the law with regard to surrogacy arrangements once and for all.

I find it very strange that anyone should regard the amendment as necessary. I am concerned that the law should be carefully encapsulated as it is in the Bill. Most people regard surrogacy as abhorrent. We debated the matter in Committee and considered all the amendments tabled at that stage. Whatever the hon. Member for Leeds, West may say, it seems strange to me that no amendment of this kind was put forward at that stage. Most of my colleagues accepted the Bill exactly as it was in Committee, and so did I. We had a tremendously quickly debated Committee stage under the very able chairmanship of the hon. Member for Hartlepool (Mr. Leadbitter) and I believe that the Bill should be left as it is.

The most important thing is to get the Bill on to the Statute Book as quickly as possible. We do not want any more commercial arrangements and we do not want any more surrogacy arrangements. Unfortunately, we know full well that three more children are liable to be born before the Bill reaches the Statute Book. Any kind of filibustering or delaying tactic today is totally unnecessary.

Mr. A. J. Beith (Berwick-upon-Tweed)


Mr. Bruinvels

The most important thing is to pass the Bill as it is, unamended, in the interests of preserving family life and ensuring that no form of engagement or contractual arrangement of this kind will ever be allowed again. For that reason, I cannot possibly support the amendment.

I welcome the Bill, I am delighted that it has made such rapid progress, and I wish it every success when it goes to another place.

Ms. Jo Richardson (Barking)

I really cannot understand the hon. Member for Leicester, East (Mr. Bruinvels). He seems to have gone right over the top, as he always does—or at any rate as is his usual bent.

The hon. Gentleman said that he welcomed the Bill and that he was against the commercial aspects of surrogacy. We are all against the commercial aspects. He went on to say that he wanted no more surrogacy, but that is not the purpose of the Bill. The purpose of the Bill is to deal with the narrow, profit-making aspect on which we all agree, and we wish to ensure that it does not stray any further into an area that the Government and all of us may be considering at a much later stage — the far more sensitive and difficult issue of surrogacy as such.

I support the amendment moved by the hon. Member for Leeds, West (Mr. Meadowcroft). The hon. Member for Leicester, East said that this issue was not raised in Committee. In fact, however, it was raised in the Committee, as reported at column 5 of the Official Report. A very similar amendment was moved and the Minister gave a most thoughtful reply, which clearly induced the hon. Member for Leeds, West to table the amendment now under discussion. The amendment merely clarifies something that could be a doubtful area if the Bill were left as it is. A number of parts of the Bill are doubtful areas, and I hope that we shall refer to them on Third Reading. I do not think that it was necessary for the hon. Member for Leicester, East (Mr. Bruinvels) to go over the top as though something disastrous had been proposed which would run a coach and horses through the Bill. Nothing like that has been proposed.

Mrs. Jill Knight

I should like to ensure that this is not altogether a party matter. I did not have the inestimable benefit of being a member of the Standing Committee, but I have read the amendment. I shall listen with enormous care and interest to my right hon. and learned Friend the Minister. It cannot be wrong to pass an amendment which says that, whatever the arrangements made at the outset of a pregnancy, a woman should not be forced to give up her child. One's mind can change very much during pregnancy and especially when the child has been born. I cannot envisage the possibility of giving up a child.

Unless the amendment has some dastardly purpose behind it which I have not spotted, it merely says that we should not have a law on the statute book which says to a woman, "However you may feel when your child is born, you must give it up." For that simple, straightforward reason, I support the amendment.

The Minister for Health (Mr. Kenneth Clarke)

I am not surprised that only one amendment has been tabled. As we discovered on Second Reading and in Standing Committee, there is a consensus on both sides of the House in support of the Bill. It is plainly the wish of the House that we should not have commercial agencies to organise surrogate motherhood and advertisements freely circulating seeking partners to surrogacy arrangements. I cannot recall legislation produced by any Government which has commanded such widespread support and had such an easy and comparatively speedy passage.

I agree with my hon. Friend the Member for Leicester, East (Mr. Bruinvels) that it would be extremely undesirable to delay the passage of the Bill. If this debate turns into a filibuster, I think that there will be concern. On this occasion, it is possible that my hon. Friend has made a rare error and misunderstood the purpose of the amendment. He rightly drew our attention to clause 1(9).

Mr. Meadowcroft

The suggestion that we might be filibustering impugns our professional motives.

Mr. Clarke

I did not make that suggestion. It was a passing reference in the heat of the moment by my hon. Friend the Member for Leicester, East. This debate cannot yet be accused of being a filibuster.

Clause 1(9) does not have quite the meaning attributed to it by my hon. Friend the Member for Leicester, East. The amendment goes back to the sympathetic response that I gave to the hon. Member for Berwick-upon-Tweed (Mr. Beith) on Second Reading when he asked the extent to which a surrogacy agreement between any parties might be enforceable at law. I stated the opinion, which has been stated by others before and since, that it is almost certain that most aspects of a surrogacy agreement would be regarded as unenforceable by the courts as being contrary to public policy. The Warnock committee recommended that this point should be expressed in statutory form so that the matter could be put beyond any doubt and not need to wait for case law to be determined with absolute clarity for the purpose of parties to would-be surrogacy arrangements.

We discussed this in Committee, and I explained that the difficulty that arose in deciding how to express such a matter in statutory form came when one considered those aspects of a surrogacy agreement which one wished to make unlawful and non-binding on the parties. We agreed that it should not be a case that any woman was legally obliged to hand over a child because at the time that the child was conceived she agreed to do so. If a woman changes her mind when the birth takes place, plainly it would be wrong for a court to order a protesting mother to hand over her child.

Similarly, we are agreed that if a would-be surrogate mother enters into an agreement with would-be parents and then the parents change their minds and do not go ahead with the arrangements, it would be quite wrong for the would-be mother to be allowed to sue for the fee under some contract into which she had entered.

As I explained in Committee, difficulties arise. One has to consider what happens, for example, where there is a voluntary surrogacy arrangement which for the time being would remain lawful until the House decided the wider issues when we reached the full Warnock Bill, and the sister, say, of the putative parents gives up her job, becomes pregnant, and incurs medical expenses, and then the intending parents renege on the arrangement and will not even pay her expenses or compensation for loss of employment.

I throw that out as a question. I am not sure what the right answer is when it comes to the possibility of the pregnant woman suing for at least the expenses that she will have to incur in going ahead with the pregnancy. But those are the difficulties that have led the Government not so far to be able to move an amendment to meet the Warnock recommendations and the wish of the hon. Member for Leeds, West (Mr. Meadowcroft) and others that we might put this in statutory form.

Mrs. Jill Knight

Do we know what would happen if the child was born mentally or physically handicapped?

Mr. Clarke

That is just such a situation which led us to think that commercial surrogacy was not a practice that we wished to see adopted. However else one resolves that appalling situation, I do not think that it is best resolved by, say, the mother who had given birth taking legal action to force the would-be parents to assume parental rights over the child. I am not sure how she would set about doing so, anyway. That would have to be resolved in some more suitable way by the Family Division of the High Court. It would not depend on the enforceability of the contract between the parties.

The Government remain sympathetic to the idea of providing a statutory provision to put the law beyond doubt, but we are having considerable difficulties in deciding on its exact form. If we can resolve them, we hope to consider bringing forward such an amendment in another place.

I shall then be asked by the hon. Member for Leeds, West why his amendment is not an adequate step in the right direction. On the face of it, there is nothing wrong with the amendment. He is merely saying that there shall be no contract enforceable at law which requires a surrogate mother to hand over her child to another person. The slight difficulty is that it carries the implication, or it might be argued that it gave rise to the inference, that other parts of the contract were enforceable. It might therefore unintentionally be a slight step backwards in that it could be argued that it carried the implication that, as Parliament had concentrated on that aspect of the contract and set it out specifically, it was somehow the intention that otherwise the contract might be enforceable.

In view of that, I suggest that the best way of proceeding might be for the amendment to be withdrawn or negatived at this stage on my undertaking that my Department will continue to struggle with the difficulties. I cannot give an absolute assurance that we shall produce an amendment, but we shall make efforts to do so in a form which meets the wishes of the House and makes clear those aspects of a surrogacy arrangement which ought to be unenforceable in any court of law.

10.45 pm
Mr. Beith

The Minister for Health has been uniformly constructive and helpful throughout the consideration of this and other aspects of the Bill. That cannot be said for the hon. Member for Leicester, East (Mr. Bruinvels), who thought that the alliance was filibustering. One sitting of the Committee and 45 minutes on Report must be the shortest filibuster in the annals of parliamentary history. If we are to be accused of a filibuster every time we make any attempt to debate any Bill to any extent at all, Parliament might as well pack up and go home. What are we here for if not to try to ensure that the laws passed by Parliament are sensible, workable and carry out the objectives which they are intended to carry out? I regard it as part of my job as a Member of Parliament to pay a part in that process, as do my hon. Friends.

The hon. Member for Leicester, East said that as a result of the Bill the laws on surrogacy arrangements would be clear once and for all. Of all the claims that the Government might make about the Bill, that is not one. The Bill will, I hope, effectively outlaw commercial surrogacy. I say "I hope" because I still have some doubts about some aspects of the Bill. It is a genuine attempt to do that, and the Government have drafted it carefully with that intention in mind. However, the Bill does not ensure that the law on surrogacy arrangements generally, or even on some aspects of commercial surrogacy, will be clear once and for all. They will not be, and there are many unclear aspects yet to be considered about this part of the law.

For example, as I have reminded the Minister on a number of occasions, we are still not clear, although I have my view of what the interpretation might be, whether when someone has given birth to a baby in these circumstances the child will be entitled to know the identity of his natural mother when he reaches the age of maturity, as with adoption cases. I think that the law will give the right to an 18-year-old to know the identity of the natural mother, and I am sure that that is not envisaged by people who would contemplate making surrogacy arrangements.

The Bill and the law are still unclear about whether it is possible to enforce surrogacy contracts in the courts. The general view is that they would prove to be unenforceable. That was the view taken by the Warnock committee, but that did not deter it from saying that the law should be clear on the point. It was emphatic, by a majority, on that view. It seemed to some members of the Committee that it would underpin the ban on commercial surrogacy if the contracts could not be enforced, because people are much less likely to enter into a commercial arrangement if they know that it is not enforceable. If the key element in that arrangement—the transfer of the baby—cannot be enforced by law, they will lose the money which they have invested and the profits which they hoped to gain by it.

Mr. Peter Bruinvels


Mr. Beith

I shall not give way to the hon. Gentleman, because he refused to give way to me.

Most of us feel that it would be ethically objectionable if a mother, after giving birth to a baby, could be forced by a legal contract to give that baby to someone else. It would be wrong to try to enforce that through the courts. Therefore, we have considered at various stages the desirability of using the Bill to make that point clear.

I recognise that there are difficulties, although some of the difficulties which the Minister mentioned would apply to anything in the Bill that we clarified, because whatever we clarify, we shall leave other matters unclear. There cannot be an argument about clarifying a major and important matter such as the rights of the mother who has given birth to the baby, although there are other aspects which might be deemed to be left unclear by not treating them in a similar way.

I recognise the Minister's genuine willingness to try to resolve this problem and to see whether we can get the law more clear on this point through the vehicle of the Bill. I accept his undertaking to attempt to make progress on the matter in the other place. I appreciate that that has to be a qualified undertaking, because he is conscious that the task may prove too difficult, and a satisfactory form of words may not be arrived at. I believe that his intentions are of the best, and I willingly accept his suggestion about the amendment.

Mr. Meadowcroft

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, That the Bill be now read the Third time.—[Mr. Major.]

10.50 pm
Mr. Beith

It is right that we should discuss the general principles of the Bill on Third Reading. I am glad that a Bill was introduced to outlaw commercial surrogacy, but the consideration of that Bill has shown us what a difficult and complex area of law it is.

There have been those who, during our discussions on the Bill, seem to have formed the opinion that it either will, or could, if it had been suitably amended, outlaw surrogacy generally. That is not what the Bill will do. It was not the intention of the Bill. In my view, it should never have attempted to do so. It would have been wrong had either the Government or hon. Members attempted to do so.

After careful consideration of the matter, I have come to the conclusion that to attempt to outlaw surrogacy generally would be unrealistic and involve extending the area of criminality into places where it should not be. However, in doing so, I believe that we accept that, if we give the Bill a Third Reading tonight, we will appear to have acted in defiance of a firm Warnock recommendation that some matters should be made criminal. For example, in the Warnock report there was a clear recommendation that professional people would be committing an offence if they involved themselves in many of the matters in the Bill. We have decided not to frame it in such a way that it has that effect, so in some respects it is an anti-Warnock Bill. It goes against a definite Warnock recommendation. In other matters, it has simply deferred consideration. That was inevitable.

The Bill represents a valuable step, rightly applauded by many in the country, to outlaw the odious practice of seeking to make profit out of infertility and childless couples. For that reason, it will be widely welcomed.

10.51 pm
Ms. Richardson

At the risk of incurring the wrath of the hon. Member for Leicester, East (Mr. Bruinvels), I hope to make a few points. Nobody should accuse me of filibustering. I have some important points to make.

The Bill has gone through the House speedily. It has gone from Second Reading to Third Reading in just two days under a month. That is a measure of the willingness of Parliament to respond to the natural distaste that has been evident among the public at large and also in Parliament towards the commercial aspects and profit-making by another party or agency, the intention of which is simply to bring couples and surrogate mothers together to make money out of their situation.

While we may congratulate ourselves on the speed with which we have dealt with the Bill in the House, I am a little more cautious in saying that I believe that we have got the Bill exactly right. The Minister for Health, in response to the short debate on the amendment, had one or two reservations about whether there should be an amendment here at an amendment there, which could be tabled in another place. Areas of doubt remain, which I find worrying. I tabled several amendments in Committee and withdrew them. I have been unable to find a way of tabling them in a way that would meet the approval of the Minister and the House. Therefore, I propose to air again the three principal points that I raised in Committee.

It is no shame to say that it is difficult to frame amendments because we are, after all, legislating for an entirely new area of the law. Surrogacy is not something that the House has considered before. Although there are precedents in some respects with regard to adoption and so on, it raises different matters from what the House has talked about on previous occasions in other ways. Therefore, we are right to be cautious about how we handle the matter. The Minister, and hon. Members on both sides of the House, has said frequently during the passage of the Bill that we need time to consider all the remaining aspects of what he calls, and what I suppose will become known as, the wider Warnock Bill to come. I can understand that he and his Department may be having some difficulty drafting the Bill.

I hope that the speed with which we have considered the Bill will not cause problems for the innocent. That is my principal worry. Unless the Bill is amended in another place, we shall have to wait to see how the Bill works when enacted. We may have to catch up with certain nasty practices when the wider Warnock Bill is introduced.

I shall refer briefly to the three areas about which I am still uncertain. First, there is the possibility of payment to those who advise or counsel the parties involved in a surrogacy arrangement and who receive payment for professional services. In Committee we had a fairly lengthy and most interesting exchange on this issue. It appears that a solicitor who is consulted by the parties may tell them what the law is— what we have decided in Parliament — but may not suggest that parts of arrangements to which they have come are not fair. The Minister says that to do so would be to negotiate and would mean that the solicitor would fall foul of the Act, unless he or she took no money for doing so. It is unlikely that a solicitor would advise without taking some sort of fee. Indeed, I do not see why he or she should give professional advice for nothing. Perhaps we shall see the springing up of advisers in law centres where charges are not made. That might be a way of skirting the problem.

Since our consideration of the Bill in Committee, I have been advised by one or two solicitors that, if it were not possible for a solicitor to tell one of the two parties to be wary about part of the agreement, the solicitor might be in breach of his professional standards. There is a duty upon a solicitor to give the best advice that he can offer. It will be ludicrous if a solicitor has to stay silent when he reads an agreement which he is asked to put into legal words and thinks that it is manifestly unfair to one side or the other.

Similarly, I assume that if a host mother engages a solicitor to advise her—that would not be a stupid thing to do—and the parents engage another solicitor, neither legal representative will be able to act without flouting the law or without taking any money. In other words, we are saying to the parties, in effect, that there is no point in ascertaining the best arrangement to which they can come. This measure is entitled the Surrogacy Arrangements Bill, but notwithstanding that title a solicitor will not be able to help or advise the parties without falling foul of the law or offering advice without charging a fee. It is probably not possible to do that in legal cases. That is a bad feature of the Bill and I hope that the Minister will give it further thought. Perhaps it will be considered by those in another place so that persons such as solicitors and others who give helpful advice will not unwittingly be caught by the bar on negotiating.

Secondly, I am concerned about the liability that is imposed on publishers by clause 3(2). The Minister will have read the letter from the Newspaper Society of 15 April, which was 10 days before we considered the Bill in Committee. I received a copy of the letter only this morning. I shall quote from it briefly as I think it important to place certain passages on the record.

The Newspaper Society said the comparison which Mr. Clarke made with libel law is not a valid one: leaving aside the fact that in many cases newspapers are protected by 'privilege' in libel actions, the law relating to editorial matter is quite distinct from that relating to advertising. At the very least, the law presumably reflects the point that editorial matter is by and large produced 'in house', whereas advertising matter merely consists of the reproduction of that which is composed by others. We explored that point in Committee. I said what the position of someone on a newspaper would be who took the text of an advertisement over the telephone and might not know exactly what it meant. The Newspaper Society continues— The distinction drawn in the Bill between newspaper publishers and broadcasters does not seem to have been discussed in Committee. It was not. The letter continues— This, in effect, gives broadcasters a defence of innocent dissemination. Why should newspapers not have similar protection? The Newspaper Society finally stated: we were a little confused by Mr. Bruinvels' reference to `disclaimers'. Indeed, the hon. Member for Leicester, East (Mr. Bruinvels) leapt to his feet from his vast experience in the newspaper industry before he came to the House. The letter continues: In our experience this is not the usual practice. Mr. Bruinvels may be thinking of a newspaper's terms and conditions of acceptance of advertisements, which sometimes contain provisions relating to the recovery of legal costs. However, these conditions cannot always he enforced and are no substitute for a clear defence in law. That is the alarm expressed by the Newspaper Society. It makes genuine points, to which the Minister may be able to reply.

My third point relates to my continued anxiety about the penalties attached to the offence. In Committee we discussed the inhibition placed on a defendent through not having the option of a trial by jury. I could not find a way to draft an amendment. In Committee the Minister gave a flat "No" when I asked him whether there was a way to ensure that the option of trial by jury could be available, although the maximum sentence is three months. That "No" cannot be right. Parliament is sovereign. If we wanted to provide the right of trial by jury for parking on a single yellow line, we could do so if we had the will. In 1964 the point was made strongly by the then Sir Peter Rawlinson, who is now in the other place. He is remembered by hon. Members as a former Conservative Attorney-General. When he was asked whether the House could amend the Obscene Publications Act 1964 with no imprisonment or fine, but merely the destruction of books, he said: there is certainly no objection in principle to proceeding for forfeiture … being tried by a jury in a court of criminal jurisdiction. It would be an innovation, but that … should not prevent it from happening.— [Official Report, 3 June 1964, Vol. 695, c. 1216.] When one argues today for the precious right of trial by jury, one is told that it automatically increases the term of imprisonment. I have done a little research into the matter and found an example where that is not so. The Official Secrets Acts lay down penalties for conviction on indictment and conviction on summary jurisdiction. In both cases the term of imprisonment provided is not a minimum or a mandatory sentence, but a maximum. Therefore, it follows that it is not necessarily true that trial by jury automatically carries longer sentences of imprisonment.

The Minister also said in Committee that the courts were clogged up—those are not his words, but that is what he meant — and that it was not a practical possibility to draft legislation that would give the option to defendants. But it would be a sad day when Parliament said that it is not a practical possibility to uphold the Magna Carta's promise of trial by jury to all who stand in danger of losing their liberty. I hope that the Minister will take the points I have raised in the spirit in which made them and will reflect on them. Perhaps it will be possible to alter the Bill, or to have something said about it, in another place.

I have voiced some worries and warnings about the drafting of the Bill, but I do not doubt the Minister's and the Government's intentions. I know that the Minister wishes to leave the general issue of surrogacy until later, but, as it stands, the bill could effectively prevent any involvement in surrogacy by a non-profit making agency or any professional assistance being given to surrogates. It could catch innocent people and people who could help the commissioning parents and the surrogate mother. It could send surrogacy underground. All those would be retrograde steps which none of us would want.

Although I support the Bill, I hope that the Government will take those warnings to heart. I hope that the Department will reflect on them and will see whether they can reconsider the drafting of the Bill without destroying its intention, thus ensuring that we shall not have something on the statute book that we may regret later.

11.6 pm

Mrs. Jill Knight

I assure my hon. Friend the Member for Leicester, East (Mr. Bruinvels) that it is not my intention to filibuster, but it would be wrong if I did not express now my reservations and worries about the Bill.

The hon. Member for Berwick-upon-Tweed (Mr. Beith) said that the Bill would outlaw commercial profit from surrogacy, but, from my reading of the Bill, that cannot be right. As I understand it, no profit-making agency may set up in business to provide surrogate mothers, but there is nothing to prevent the woman herself from setting up in business as a surrogate mother. That is how I read clause 2. I shall listen carefully to my right hon. and learned Friend the Minister's reply, because I know that he has done his best with a Bill in a difficult area about which there is much public concern.

However, if I have read the Bill correctly, it would appear that a woman may become a surrogate mother and earn a profitable living. Money may change hands, as long as it goes to the woman directly from the would-be parents. That worries me greatly, because I find womb-leasing utterly repugnant, and I believe that the Warnock committee also took that view.

Non-profit making agencies are not covered by the Bill. Perhaps I have become cynical after many years in the House, but there are many ways to get round such a ruling. Will the police check the accounts of non-profit making agency set up to make surrogacy arrangements? Will there be investigations to ensure that that agency is not benefiting from the arrangements that it makes?

I cannot help wondering about foreign agencies, because hon. Members will be well aware that it was an American agency that set up the Baby Cotton case which alerted the public to the dangers of what is happening. I do not see how the Bill could stop any arrangement made with a foreign agency, for example in Holland or America, which advertised for women to become surrogate mothers and relayed such information across the Atlantic.

Mr. Meadowcroft

The hon. Lady mentioned profit and asked whether accounts would be examined. As far as I am aware, profit is not mentioned as a criterion. The criterion is a "commercial basis". In the Bill "commercial basis" is defined as any payment that is received or given. That is rather different from the profit that the hon. Lady suggested. She may have mistaken "commercial basis", for "profit". They are different things under the Bill.

Mrs Knight

I do not know whether I am being oversimplistic or overcynical. As I understand it, under the Bill an agency cannot arrange a surrogate mother to bear a child for would-be parents for profit. An agency can make such arrangements provided that it does not make a profit.

Mr. Meadowcroft


Mrs. Knight

I am delighted to hear that. I shall be interested to hear what my right hon. and learned Friend the Minister for Health says. Outside the House the view is that non-profit making agencies are not covered by the Bill. I am anxious to know the true position.

The Bill covers only advertisements in the United Kingdom. I fully understand that we can cover only those advertisements. Agencies could advertise in America or Europe. A woman could be informed of those advertisements and make her arrangements with the agencies if they were not in the United Kingdom. The agencies might be in Jersey, Guernsey or somewhere like that. That would be handy.

I am worried about the suggestion that has been made — it was contained in the Warnock report—that surrogacy is all right provided that no profit is made from it. I questioned Dame Mary Warnock, as she then was, about that point. I said, "Have you ever known cases where women have borne children for nothing?" She said, "Oh, yes. I knew of a case where the eldest daughter, who was 16, had a child, and the family brought up the child as its own." That is not what I understand to be a surrogate mother. We are talking about financial arrangements by which a woman lets out her womb and conceives and bears a child which she will give up for money.

I have never known a case where a woman has been willing to do that for no return. That aspect of the matter worries me, because I can imagine difficulties in the family if a sister were involved. There could be problems later with the marriage. All kinds of difficulties would arise when the child was known to be the child of the person whom he or she calls aunt.

When we tinker with such matters we uncover difficulties which we have not fully understood. I salute my right hon. and learned Friend for his efforts, but I must place on record my deep anxiety about how the Bill will work in practice.

11.14 pm
Mr. Peter Bruinvels

I am glad that we have finally reached the Third Reading of the Bill. I want to reassure my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) that if she reads the explanatory memorandum she will note that it says: This Bill prohibits the recruitment of women as surrogate mothers and the negotiation of surrogacy arrangements by agencies acting on a commercial basis. That is why I could not support the Liberal amendment. I should prefer there to be no surrogacy arrangements, but the Bill deals specifically only with commercial surrogacy arrangements.

The Bill also prohibits advertisements of or for surrogacy services, and it covers the whole of the United Kingdom. This is a very important point. The advertisements referred to in clause 3(2), (4) and (5) make it quite clear that the proprietor, editor or publisher of a newspaper or periodical published in the United Kingdom which contains an advertisement to which the section applies is guilty of an offence. Later we read what that offence is. Furthermore, the offence is not restricted to advertisements published knowingly, because the proprietor, editor and publisher should know what they are publishing.

The hon. Member for Barking (Ms. Richardson) referred to my involvement in the newspaper industry, in which I spent two and a half years. I do not regret what I said in Committee, and I repeat it now. I said that newspapers have a right to be protected. The letter referred to by the hon. Member for Barking from the Newspaper Society dated 10 May makes it quite clear that I was referring to the terms and conditions relating to the acceptance of advertisements. If advertisements are inserted which newspapers know contain this information they will be liable at a later date.

Clause 3(4) provides that one must not publish such advertisements. If one does, one is clearly committing an offence. If, therefore, as my hon. Friend the Member for Edgbaston pointed out, foreign advertisements are knowingly put into the shop windows of newsagents, they will be breaking the law. Similarly, anybody who knowingly causes advertisements in foreign newspapers to be distributed in the United Kingdom—this covers the point made by my hon. Friend—will be committing an offence. The distributor of a newspaper or periodical which is published abroad and sold in this country will be committing an offence.

The British Medical Association who wrote to me on 24 April 1985 said that from a medical point of view it completely supported the Government. I apologise to the hon. Member for Berwick-upon-Tweed for not giving way earlier, but I knew that other Liberal Members wanted to speak. It is important to protect the baby and we need to provide an arrangement that will last. The Newspaper Society wrote the same letter to me as they wrote to the hon. Member for Barking. I share its concern about one point. It is extremely concerned that clause 3(2) imposes a strict liability on the publisher of any newspaper containing an advertisement referring to surrogacy arrangements. My right hon. and learned Friend the Minister for Health will, I know, allay that particular fear. The Newspaper Society refers to inconsistency in the drafting of the clause. I believe that it is well drafted, but if the Newspaper Society is concerned about this point a reply is obviously required.

Mrs. Anna McCurley (Renfrew, West and Inverclyde)

I am grateful to my hon. Friend for giving way. Does he not think that all the panic about advertisements and the possibility of mail shots from the United States are completely unfounded? It is a question of scale. Very few people require surrogacy arrangements. Therefore it would be impracticable and uneconomic for anybody to indulge in this practice, even some fanatic in the United States.

Mr. Bruinvels

I agree with my hon. Friend, who has done so much about the surrogacy arrangements, who introduced a ten minute Bill almost a year ago and who has been a leading light in the campaign. The claimed advertisements will not happen. Arrangements for commercial reasons will not now be made. Of course, in the past in Scotland non-financial arrangements were made when a girl was unable to have a child. An agreement was reached with her sister, for example, and no finance was involved. Such arrangements are made and they will not be precluded under the Bill.

I welcome the Bill which I believe to be desperately wanted. The Bill is absolutely right for our society, for protecting our families and for ensuring that never again will the unseemly arrangements associated with the Baby Cotton case arise. It will ensure that when couples want a child they can have it in the normal way and that money will never enter into such sickening and unfortunate arrangements.

11.20 pm
The Minister for Health (Mr. Kenneth Clarke)

I finish the debate on a note of complete support for the Bill. I hope that the House of Lords will take note of that and that the Bill will enjoy a speedy passage.

On Third Reading, hon. Members have confirmed their support, and a number of Committee points have been repeated. Hon. Members are anxious not to hold up the measure, but the issue is so complex that worries have to be voiced about the exact drafting of various provisions. The Government will continue to pursue those anxieties and they will be examined closely in another place. The opportunity will be taken to tidy up certain matters.

The Bill addresses itself to two narrow issues. They are deliberately narrow so that we can achieve an agreed objective. We reserve for later the much wider and related issues of assistance for infertility, the legitimacy of children and the legality of many issues considered by the Warnock Commission.

The hon. Member for Berwick-upon-Tweed (Mr. Beith) does not think that we can do much more in relation to voluntary surrogacy. I share his view that the private, informal arrangements that have existed since time immemorial will not be tackled by the law. The big question that the House will find difficult to resolve is that raised by my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) about agencies acting on a noncommercial, non-fee basis. A division of opinion is inevitable and the House will return to that issue later.

The Bill makes it illegal for commercial agencies to thrive in this country. That is done in a particular way, set out in clause 2, which is aimed at making the negotiations and the assembling of information which would enable agreements to be negotiated unlawful if payment is received for those negotiations. I paraphrase the provisions loosely. Those interested must look at the exact text. The Bill also makes illegal advertising by anybody in a publication published in the United Kingdom or through a broadcast aimed at the United Kingdom. The hon. Member for Barking (Ms. Richardson) expressed again her anxiety about the position of professionals such as solicitors, social workers or doctors who might accept a fee for giving certain advice to parties to voluntary surragacy arrangements and thereby fall foul of the Bill.

I shall attempt, as briefly as possible, to reiterate the points I made in Committee, in the hope of making matters a little clearer. The starting point must be that anyone who is trying to work out whether he or she is committing an offence under the Bill must look at clause 2. Clause 2(1) sets out under three subheadings the acts that are made unlawful. They will be unlawful if they are done on a commercial basis as defined in subsection (3), that is, if any payment is received for committing the act. Therefore, it is unlawful only if anyone receives a fee for being involved in negotiating arrangements as defined in that subsection.

To apply that to the points raised by the hon. Member for Barking, first, a lawyer or any other professional cannot really commit an offence if he is giving advice only to one party or the other. Any lawyer dealing only with the intending parents or only with the would-be surrogate mother cannot become involved in any negotiations. As long as advice given to one party or the other does not extend into negotiations or anything plainly aimed at negotiations as defined in clause 2, it would not be unlawful. Therefore, a lawyer can safely give advice to one party or the other provided that he deals only with the one side and has nothing to do with the other side.

Ms. Richardson

What the Minister is saying is interesting and helpful. But surely where two parties, in whatever sort of contract, have their own solicitors, there must come a time when they wish to communicate to make an agreement. Is the Minister saying that the solicitor for one party cannot write to the solicitor for the other party because the moment he does so he is negotiating and therefore flouting the law?

Mr. Clarke

I am saying just that. If one solicitor gets in contact with the other solicitor, and the moment that he does any of the acts defined in the clause, he will be guilty of a criminal offence if he takes a fee.

In drafting a Bill aimed at outlawing commercial surrogacy agencies, the most effective way to achieve that is to aim at the principal activity of those agencies, which is to bring together the parties or to compile information to enable them to be brought together—for example, lists of would-be surrogate mothers and lists of intending parents—and then to negotiate an agreement between the two. That is why the Bill is drafted to make that unlawful.

The moment we say that that is unlawful unless that person is a solicitor, a doctor or a professional social worker, we have an anomalous position and the law will be unenforceable.

While a solicitor is giving advice about the general law to one party or the other, who has come to him with his worries, it is highly unlikely that he could fall foul of this legislation. The question arises of what happens if all three parties go to a solicitor together to get his advice. That solicitor will no doubt realise that he must address himself to the precise terms of what will be an Act of Parliament to know what he can or cannot do. He could certainly give general legal advice to all three parties and tell them what it is unlawful for them to do. But he would be committing an offence if he began negotiating an agreement or arrangement between the parties and took part in the interchange about terms and so on.

I do not think that I can explain the bill further than that. I underline to fact that, in practice, whether an act is unlawful will depend entirely on whether it falls within the definition in clause 2 and whether that act has been for payment. If hon. Members still have doubts, I ask them to consider how else one is to define the activities of a commercial agency in an effective way.

Mr. Beith

In supposing that a solicitor could give extensive advice on a surrogacy arrangement, is not the Minister relying on a narrow interpretation of clause 2(1) (c), which refers to compiling any information with a view to its use in making, or negotiating the making of, surrogacy arrangements. The right hon. and learned Gentleman talked of that as though it meant information such as the location of a possible mother. It could mean information about the existing law relating to that matter.

Mr. Clarke

I will reflect on that. What the hon. Gentleman puts forward is ingenious, but I do not think that if a solicitor, for instance, had copies of surrogacy arrangement legislation on his shelves, he would be likely successfully to be accused of compiling information with a view to … making, or negotiating the making of, surrogacy arrangements. Thus, if the parties all went to a solicitor and asked, "If we go ahead on our own with a surrogacy arrangement by which we hand over a fee from one to the other, what then?" He would be able to advise them, for example, that no penalty could apply to any of the three people, or he could try to advise them on whether the contract would be unenforceable as contrary to public policy, if we were not able to secure a clause in another place.

He would, therefore, be able to give general legal advice, but he would not be safe if he began to do anything which amounted to the making or negotiating of a surrogacy arrangement— if, for example, he began to draft a suitable form of contract and negotiate terms between the parties.

I have not had the advantage of seeing the letter from the Newspaper Society, I apologise if it has reached my Department but has not reached me. I appreciate that most hon. Members seem to have their copies. I will consider the letter when I receive it. My reaction to the point made about it by the hon. Member for Barking is that a newspaper can be liable for publishing a defamatory advertisement in its pages, just as it can be liable for publishing defamatory editorial matter. A newspaper would not escape entirely if some wholly defamatory advertisement aimed at any one of us appeared in its columns.

There is a distinction between the drafting of the Bill as it affects newspapers and broadcasters. That is because publication in a newspaper means putting out the printed word. It is reasonable for the publishers and others to be held responsible for what they have allowed to appear on a printed page that they could have read.

For a broadcaster dealing with, say, a phone-in programme, it is possible for things to be blurted out over the air—for example, if a delay button has not been fitted—in a way that is completely beyond the control of the broadcaster. That is why "knowingly" appears in the Bill in relation to broadcasters and gives them a slightly advantaged position.

I accept that the hon. Member for Barking is concerned not so much with penalties as with the right to trial by jury of any parties who are brought to court under the Bill. It would not be impossible to draft a Bill to give a right to trial by jury even when there is no penalty of imprisonment. Indeed, if this measure were to provide for a penalty of imprisonment of six months or more, there would automatically, under other legislation, be a right to opt for trial by jury. That is not given by the Bill because the maximum penalty is three months.

As we pointed out in Committee, we are against the hon. Lady on this issue and do not see the case for trial by jury. There must be some, less serious, criminal matters which are reserved to the magistrates' court and which need to go to the Crown Court at the option of the accused. The nature of proceedings under the Bill is not likely to be similar to those in ordinary criminal proceedings.

The very existence of an Act of Parliament will stop any reputable commercial body from seeking to make a living in this way. Trying to break the law will become a rather foolish and high risk way of making a very limited living. If proceedings have to be brought, however, they are unlikely to turn on the issues of fact that often arise in criminal cases. I do not envisage people producing alibis or denying a large part of the factual information. Evidence will be given describing a particular state of affairs and the court will be called upon to decide whether it is unlawful within the terms of the legislation. That should be well within the competence of a magistrates court.

My hon. Friend the Member for Edgbaston raised a point that was not dealt with by the other three hon. Members who spoke—the position of the woman who offers herself as a surrogate mother and, as my hon. Friend fears, seeks to make a living by so doing. My hon. Friend is certainly correct in saying that under the Bill the woman could not be guilty of a criminal offence if she received a fee in that way, although she could be guilty of a criminal offence if she advertised her services the opportunities for making money in that way will be seriously inhibited.

It has not been made a criminal offence for a woman to enter into such an agreement because we were seeking consensus on this and that was the view of quite a large number, although not all, of the people who considered this aspect. In some circumstances, one could regard the surrogate mother as a victim or potential victim whom we should be seeking to protect. The would-be parents could also be seen as possible victims, their desire for a child being exploited by an agency arranging surrogate mothers.

To impose criminal penalties on a foolish woman who may have given way to the temptation of a large sum of money when she was in a vulnerable position is a contentious matter. To impose such penalties on the would-be parents, who may have been carried away by their desperate desire for a child, would also be a contentious matter. Moreover, if any child was born as a result of such arrangements it would be a very unhappy start in life for a child if either its natural mother or its intended parents were promptly prosecuted. It would also be extremely difficult to preserve the confidentiality of the child in such circumstances.

I assure my hon. Friend the Member for Edgbaston that we considered the point seriously, but we were sure that we should not command universal support in the House if we attached penalties of that kind to the mother and I think that it would be unwise to consider doing so at this stage.

I hope that I have dealt with all the points raised, although probably at too great a length, and I return to what remains the one common theme of this evening's debates on the Bill. Everyone supports the Bill and is anxious to see it on the Statute Book. There is absolutely clear agreement between us, which I am sure reflects the vast bulk of public opinion outside, that the sooner we have a law that stops commercial agencies and advertisements in this area, the better.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

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