HL Deb 12 July 1985 vol 466 cc444-50

12.5 p.m.

The Earl of Caithness

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(The Earl of Caithness.)

Lord Denning

My Lords, I support the Third Reading of this Bill. It was at the Committee stage that I put down a number of amendments designed to strengthen the Bill. However, I withdrew them because of the importance of getting this Bill through as quickly as possible and made law.

The object of this Bill is, in a way, to outlaw surrogate agencies. I desired to strengthen it. Let me first remind your Lordships what a surrogacy arrangement is. A woman who is infertile or who for some other reason cannot have a baby goes to another woman and for money persuades that other woman—or the other woman agrees—to bear a baby and to hand it over immediately on birth to the commissioning mother. Furthermore, the commissioning mother provides the sperm—it may be her husband's sperm or it may be another man's—and then the surrogacy arrangement takes place. As soon as the baby is born, the real mother—as I call her—hands her baby over to the commissioning mother.

I put down amendments to strengthen the Bill. I will not go further into them, but they received much support. All I will do today is draw attention to some limitations in the Bill as it stands which I should like to see extended. In the first place, the Bill only outlaws surrogate agencies which operate on a commercial basis. It does not prevent in any way the commissioning mother or the carrying mother from paying or receiving money. It does not outlaw the doctors and professionals who charge large fees for the purpose. All it outlaws at the moment is surrogate agencies, often operating from the United States of America, who advertise and arrange these deals between the commissioning mother and the carrying mother.

I put down amendments covering those other aspects but withdrew them because of the time. However, I remind your Lordships and the Government of the urgent recommendation contained in the Warnock Report, which appears on page 47, in black type. It states: We recommend that legislation be introduced to render criminal the creation or the operation in the United Kingdom of agencies whose purposes include the recruitment of women for surrogate pregnancy or making arrangements for individuals or couples who wish to utilise the services of a carrying mother; such legislation should be wide enough to include both profit and non-profit making organisations. We further recommend that the legislation be sufficiently wide to render criminally liable the actions of professionals and others who knowingly assist in the establishment of a surrogate pregnancy". That is in the report of the Warnock Committee—and how important it is! It is not sufficient to stop at those who do it on a commercial basis. Others may be well intentioned and may want to help women who are infertile. There may be agencies which are non-profit making. Therefore, I hope that the Government will not wait for the final stage of the Warnock Report. Much of it is so controversial that it may take two or three years before we get the final report and decisions on it. I ask the Government urgently to consider whether there could be an interim Bill, brought forward as soon as possible, to outlaw surrogate agencies whether they are on a commercial or a non-commercial basis.

There is another important matter which I should like to see dealt with as soon as possible. I refer to the registration of births. Let me tell your Lordships what happens in the converse case of artificial insemination by a donor. A husband may be infertile himself and his wife anxiously wants a baby. So they get some other man, a donor, to provide the sperm. It is injected into the wife's body and she bears the child. It is not her husband's child; it is the donor's child. It is the donor's semen which has been used. How is that birth to be registered? The Warnock Report said that everything in this field should be anonymous. The mother who gives birth to the child is to know nothing of the donor who provides the sperm. I do not know whether she is even told the colour of his eyes. She does not know whether he is dead or live, because the sperm may have been frozen for some time. She is told nothing of the man who has provided the sperm. Equally, the man is to be told nothing of the woman who has borne a child with his sperm. The principle of anonymity runs through the report. It is the basis if it.

It is a very serious and debatable question whether this theory of anonymity is right. I should like to think that every child has a right to know who his father is. I should like to see that every woman who bears a child knows who is the child's father, with all the particulars. Just knowing that a man's sperm has beers injected is not good enough. The theory of anonymity which runs through the Warnock Report I should like to see challenged in both Houses—but that remains for another day. The immediate and urgent question is: what is to be put down in the official Register of Births so that everyone can know who is the mother and the father?

At the moment, in the cases which I have put forward the baby is registered, more often than not, in the names of the husband and wife, where the wife is not really the mother of the child in a surrogacy arrangement and the husband is not the father of the child in an AID arrangement. Apparently, the practice in registering the birth is to deceive the public and to deceive the child by, in surrogacy cases, putting the commissioning parents as the father and mother and in the AID cases putting the husband and the wife as the parents.

There is another matter of urgency. The Warnock Report states on page 26: we are of the view that consideration should be given as a matter of urgency to making it possible for the parents in registering the birth to add 'by donation' after the man's name. In other words, should not the register be true and represent what has happened? Should we not have legislation urgently to see that in future our registers tell the truth for the sake of future generations and, above all, for the sake of the child, who ought to be able to know who are its true parents?

I mention these matters because they are urgent. The Bill is very good as far as it stands. We cannot go further. We must get it through quickly, as it stands. However, I ask that these other matters be dealt with urgently in another Bill and not be left for the full discussion of the Warnock Report. I fully support the Third Reading.

12.15 p.m.

The Earl of Halsbury

My Lords, I am one of many who are grateful to the noble and learned Lord. Lord Denning, for the trouble he has taken in analysing the provisions of the Bill so far. We all welcome the Bill and will be glad to see it on the statute book. We are also grateful to the noble and learned Lord, Lord Denning, for his moderation in not pressing his amendments in Committee to the possible prejudice and safety of the Bill by requiring it to be referred back to another place.

There are many matters which need attention, and I have it in mind, if I can secure support, to ask leave of your Lordships early in the next Session to introduce a Private Member's Bill to amend this Bill, which will then be safely on the statute book and cannot be damaged. We can then discuss and carry through, to Divisions if necessary, the various provisions that the noble and learned Lord, Lord Denning, spoke to during the course of the Committee stage. I shall naturally endeavour to draft such a Bill so that it has the maximum rather than the minimum support from the Government. This is merely an opportunity to inform your Lordships of what I have in mind, provided I can obtain support from my noble friends.

Lord Houghton of Sowerby

My Lords, during the course of this Bill it has been necessary for the noble Earl the Minister, with my unusual support, to emphasise that the Bill outlaws commercial surrogacy and does not deal with the principle of the matter. It is a narrow Bill to deal with a problem which, if left uncurbed, might extend rapidly and create a great deal of public disquiet and objection.

We cannot take the Third Reading of this Bill and mount it as a platform (as so often we are tempted to do) in order to do something more, a lot more, and to do it faster, a lot faster. That is what the noble and learned Lord, Lord Denning, has been advocating. We know his views, and what we have heard this morning we have heard before, from him and from others. We must keep clear of debating, at this stage on this Bill, the main issues, which still have to be dealt with.

I should like to say a few words on that. Rushed legislation is nearly always bad legislation. In a democracy, time for consideration is desirable. On other matters the Government do not think that three years is too long to spend on dealing with a complex and highly emotional matter. Indeed, on the use of animals in laboratories—which is not unconnected with the issues we are dealing with this morning—the Government have taken the whole of their lifetime to reach a conclusion on legislative proposals; and we are not even in sight of them yet. There is an urgency that is not so pressing as this matter in the mind of the Government or, for that matter, in the minds of many noble Lords in this House. But this Bill raises moral human issues, and they are always foremost in people's minds.

In this connection I should make the observation, too, that we must not overlook the fact that what is done to humans has first been done to animals. It is always well to keep an eye on what is happening to animals as a possible indication of what may be translated into the field of human experience, and that goes for many matters beyond this Bill, though I stress the fact that here we are dealing again with this Bill on a narrow purpose and we ought to keep it at that.

I support this Bill. When the issues come to be debated in their wider, moral and social perspectives we shall require a good deal of time and thought if possible to reconcile differing approaches to this matter. The time for that has yet to come. I shall not seek to dissuade the Government from tackling this matter as early as they feel able to do so, but I hope that when the time comes we shall not be told that the urgency is so great that we must press on. Indeed, it has already been suggested that, if the Government do not have time, it might be dealt with under the Private Member's Bill procedure. We know what problems arise on that, and I dealt with them the last time I spoke on this Bill when that very proposal was put from a noble Lord on the Benches opposite. I ask your Lordships not to have legislation considered under the Private Member's Bill procedure and made under the stress of time, under the urgent plea that if the Bill does not return to another place by a certain date, it will be lost, and that that would be tragic. That is the condition under which all too often this House has had to consider the final stages of Private Members' Bills on matters as difficult and emotional as this one.

I beg the Government and noble Lords to allow this matter to emerge from the Government's considerations and the debate that is going on at the present time on these issues. Let us deal with it as calmly as we can and with adequate time, when the occasion presents itself. In the meantime there is no problem which is of such pressing urgency that we have to legislate further in the immediate future. The main issue is to stop what seemed to be a most objectionable practice of surrogacy under commercial contract. This Bill deals with that and for the moment I think we should rest there and consider this matter further in the autumn and in the course of the coming year.

The Warnock Committee took time to consider its report. We must take time to consider its recommendations. In many respects they are highly controversial, and they have to be resolved somehow or other, but I hope that we shall not be rushed by the urgent pleas of most respected and senior Members of your Lordships' House. There is another point of view about this and I have ventured to express it.

Lord Edmund-Davies

My Lords, I, too, support this Bill and rise merely in an attempt to assuage the perturbation expressed by the noble and learned Lord, Lord Denning, in relation to the restriction of the Bill to matters arranged on a commercial basis. Citing the Warnock Report, he would have the Bill apply to non-commercial attempts to arrrange surrogacy. In that context it is worth noting the provisions of Clause 3, which deals with advertisements about surrogacy. It is not restricted to advertisements about surrogacy on a commercial basis; it prohibits and penalises advertisements about surrogacy, with no such limitation at all.

The noble and learned Lord, Lord Denning, had in mind people who, for reasons of benevolence or pity for the childless couple's yearning for a child, enter into some surrogacy arrangement. No concern, no body, charitable or otherwise, can possibly succeed unless it does a certain amount of "advertising" but if it advertises, Clause 3 makes it an offence to do so. In the absence of advertising, how could any appeal or arrangement in relation to surrogacy succeed? With respect, I think that the Bill is wisely framed, and for that reason I do not share the perturbation of my noble and learned friend, who is also my old friend, Lord Denning, in relation to the restriction of Clause 2. On this basis I myself wholeheartedly support the Bill and have no perturbation about it so far as it goes.

Lord Meston

My Lords, I should like respectfully to echo those sentiments from the noble and learned Lord. I much regret that I was unable to attend the Committee stage of the Bill, but clearly it was a most stimulating debate. Perhaps I may say also with respect that I admired the restraint of the participants in not pressing their amendments, though I suspected, and I gather rightly, that they were saving their ammunition for a later, more broadly based attack.

Of those amendments I see that the noble and learned Lord raised but did not press an amendment seeking to clarify the illegality of such arrangements at common law. I have to say that my understanding, from case law at the turn of the century, has always been that any such agreement, whereby a mother seeks to give up her rights over a child, would be held to be void by the courts. As he told your Lordships this morning the noble and learned Lord also sought to broaden the criminal base of surrogacy arrangements, extending them beyond the commercial agencies which are under attack in this Bill. I suggest that in an age when we are perhaps seeking to reduce the stigma of illegitimacy we must be careful in creating what might be seen as a criminal gloss on the already existing stigma.

Generally speaking, if I may echo the phrase of the noble and learned Lord, Lord Denning, in another quarter, for the time being we must trust the judges. We must trust the judges to find such agreements void where they are driven so to do, and, above all, we must trust the judges to keep their eyes on the main consideration in these cases, which is the welfare of the child. I am sure we can trust the courts always to approach these matters on the basis that the welfare of the child is paramount.

These problems will not go away. The noble and learned Lord is right of course. Some of them are urgent, but not all are urgent, as the noble Lord, Lord Houghton, pointed out. They are complex questions and must be considered carefully. I suggest that before we rush into any further legislation careful thought must be given to defining the rights and duties of the adults involved and to defining the rights and status of the children affected. I gather that we all agree that this Bill is uncontroversial. It is uncontroversial and therefore welcome. We must speed it on its way, and I would suggest that it is none the worse for leaving this House unamended.

Lord Prys-Davies

My Lords, we thank the Government for this Bill. Henceforth it will be a criminal offence to operate a commercial surrogacy agency, and, as the noble and learned Lord, Lord Edmund-Davies, has very clearly pointed out, it will be an offence to advertise any surrogacy service. These are important developments which have been supported by all those who have spoken in the debates at Second Reading and in Committee and which have indeed been acknowledged by the noble Lord, Lord Denning, this morning.

Although the Bill leaves this House unaltered and unamended, the debates on its provisions and on the amendments put down in particular by the noble and learned Lord. Lord Denning, have been valuable. I am sure that the Minister will acknowledge their significance. They have identified the important issues which are unanswered by the Bill and which are a continuing cause of concern for many Members of your Lordships' House. I very much hope that the Minister can assure the House that the subject matter of the amendments, which it is true were not pressed to a Division, will be given thorough consideration by the Government in the light of the debate in your Lordships' House and, as my noble friend indicated, in the light of the debate in the country at large. I hope that it will not be necessary to come forward with a series of interim Bills. With those few remarks we welcome the Bill and we shall be glad to see it in operation with the minimum of delay.

The Earl of Caithness

My Lords, your Lordships will by now be familiar with the objective and content of the Bill and my priority today is to express my gratitude to your Lordships for giving this Bill such a speedy passage. The Government announced only in March their intention to bring forward legislation this Session to prohibit commercial surrogacy agencies and advertising of or for surrogacy services. I think that this is a small but useful measure. I say that because one of the commercial agencies operating in this country has already announced that it will cease operations. With due respect, I think that that is the best vindication of this limited Bill. A larger Bill will raise greater emotions and will, as we have heard today, be highly controversial.

I should like just to repeat the words of my right honourable friend the Prime Minister, who said that the Government aim to introduce a comprehensive Bill as soon as practicable on the matters dealt with in the Warnock Report. In that connection we have found your Lordships' contributions to this important debate over the last 10 months more than just helpful. My noble friend Lady Trumpington and I are very grateful to all noble Lords—I shall not mention any by name—for having taken part in this debate, as that is helping the department to frame its thoughts on the matter. I can assure your Lordships that in framing the legislation we shall take careful account of the points that have been raised. Once again I express my thanks to all noble Lords who have taken part in the debate.

On Question, Bill read a third time, and passed.