§ 1.54 p.m.
The Earl of Caithness
My Lords, on behalf of my noble friend Lady Trumpington, I beg to move that 1519 this Bill be now read a second time. Your Lordships will know that in March the Government announced its intention to bring forward legislation during this Session to prohibit commercial surrogacy agencies. The reasons which led to the introduction of this Bill are, I think, also well known and its objectives are straightforward.
Your Lordships will recall that the Warnock Report on human fertilisation and embryology was published last July. I should like to take this further opportunity of thanking the noble Baroness, Lady Warnock, for the contribution she has made to our understanding of these matters. Although we took an early opportunity to debate the report last October, this is the first time we have returned to the matters with which it deals since the noble Baroness became a Member of this House. On rereading your Lordships' debate on the Warnock Report last October, I was interested to see that all those contributions which touched on surrogacy were unanimous in their opposition to commercial surrogacy agencies. I hope this unanimity of view will continue in our debate today on the principle of this Bill.
Among the many important matters dealt with in that report was surrogate motherhood. That is the practice where a woman agrees, before becoming pregnant, to carry a child with the aim of handing it over to commissioning parents. In fact, the Warnock Committee was in little 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 his would be difficult to prevent without the assistance of the criminal law".We gave the report as wide a circulation as possible, and a full-scale public and parliamentary debate has followed. It is clear that there is substantial anxiety about the practice of surrogacy in general. But, in particular, there is widespread concern about the existing and potential commercial exploitation of the practice. Indeed, there was almost total agreement in the views expressed that surrogacy undertaken on a commercial basis was unacceptable. The Government gave a commitment last November to consider urgently whether the law on surrogacy required clarification. It is our firm belief that it does and that clarification is required now.
Only last week we heard of the birth of Britain's second baby as a result of a commercial surrogacy arrangement—a boy. We understand that other agency-arranged surrogate pregnancies are ongoing. Without legislation there would be an incentive for commercial agencies to extend their activities until such time as more general legislation was available.
This Bill does not attempt to deal with all the issues raised in the Warnock Report. Many of these are complex and there is deep division about some of them. My right honourable friend the Secretary of State for Social Services has already said that the proper way to handle these issues is by a comprehensive piece of legislation. My right honourable friend, the Prime Minister, said earlier this week in another place that the Government plan to introduce a comprehensive Bill on these matters as soon as practicable. Thus, I bring before your Lordships a 1520 short five-clause Bill for which there is wide support. We have already seen that in another place there is almost total agreement that commercial surrogacy is unacceptable. The Bill has the limited but vital objective of stopping the potential and untoward development of commercial surrogacy in the United Kingdom. It prohibits the recruitment of women as surrogate mothers and the negotiation of surrogacy arrangements by agencies acting on a commercial basis and will ban advertising of, or for, surrogacy services, whether by agencies, surrogate mothers or commissioning parents. The Bill extends to the whole of the United Kingdom.
I now turn to the Bill itself and the detailed provisions. Clause 1 of the Bill defines a number of terms for the purposes of the Bill, in particular "surrogate mother" and "surrogacy arrangement". Clause 2 tackles the prohibition of commercial surrogacy agencies. Subsection (1) lists the activities in relation to surrogacy which the Bill prohibits if done on a commercial basis. These are initiating or taking part in negotiations with a view to making a surrogacy arrangement, offering or agreeing to negotiate a surrogacy arrangement, and compiling information with a view to its use in making or negotiating surrogacy arrangements.
An important provision in this clause is subsection (2), which excludes surrogate mothers and commissioning parents from an offence under subsection (1). It has been put to us that our prime target in this measure should be outlawing commercial agencies. It is not part of our purpose to penalise the infertile couple who may be driven by their plight to make surrogacy arrangements. Nor do we want to penalise the surrogate mother herself, who may genuinely consider that she is helping another woman who is unable to carry a child by helping to make parenthood possible for her. The remaining parts of this provision deal with offences. They create offences for a body of persons to receive payment or for a person knowingly to take part in the management or control of a body which acts on a commercial basis in these matters.
Clause 3 deals with advertising. It makes it an offence to advertise surrogacy services, whether 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 catches the commissioning parent and surrogate mother. This is because advertising may well be a first towards commercial activity of the kind which the Bill is designed to prohibit. This provision is framed so as to catch all the main forms of advertising in the country, whether in newspapers or periodicals or on radio or television.
Clause 4 deals with penalties and provides that a Clause 2 offence (for instance the one relating to agency activities carried out on a commercial basis) carries a maximum of three months' imprisonment and/or a fine not exceeding level 5—currently £2,000. Clause 3 offences relating to advertising carry a level 5 fine only. In order to forestall any frivolous private prosecutions, for example, of doctors, Clause 4(2) provides that except in Scotland prosecutions will be brought only by, or with the consent of, the appropriate Director of Public Prosecutions.
1521 Clause 5 provides that the Bill shall extend to the whole of the United Kingdom. As there is no specific commencement provision, it will come into force on receiving Royal Assent. We think that the publicity there has already been about our intentions in this measure will have been sufficient to forewarn any people involved already in the activities which the Bill will prohibit or any who might have been contemplating setting up a commercial surrogacy agency.
I commend this Bill to your Lordships. It comes to you unamended in another place and with overwhelming support. I hope that we can give it a speedy passage. I beg to move.
§ Moved, That the Bill be now read a second time.—(The Earl of Caithness.)
§ 2.2 p.m.
§ Lord Prys-Davies
My Lords, as there are at least 10 noble Lords who wish to take part in the debate I shall curtail my remarks. I wish to support the Bill and I welcome it. Deep concern was expressed over the Baby Cotton case last January. There was at that time and there remains a strong and widely held view that there ought to be urgent action taken to outlaw commercial surrogacy.
There was always a possibility that the Government would do nothing in the short term, pleading for time to give sufficient consideration to all the complex issues raised by the Warnock Report and to reflect upon their implications, so that in the maturity of time they could bring forward a comprehensive Bill to deal with most of the recommendations. There was the other possibility that, given the upsurge of concern over the Baby Cotton case, the Government might rush in to outlaw all forms of surrogacy in all circumstances. It seems to me that the Government have steered a middle course. I believe that for the time being their approach is about right, although others will tilt their views towards a different approach.
Non-commercial surrogacy will continue to be lawful, but in this Bill the Government have recognised the serious mischief—some would say the serious evil—presented by commercial surrogacy agencies and the need to legislate now to make such agencies and the advertising of and for commercial surrogacy services illegal and criminal.
The case for banning commercial surrogacy agencies rests on at least four main arguments. The first argument is that the surrogate mother should not be bribed by a commercial agency. She may be badly off, but she should be under no financial pressure, because she needs money, to agree an arrangement which she may well live to regret. Likewise the distress and the need of infertile couples who are anxious to have a child should not be exploited for gain. Of course it carries considerable risks for a child who could, in maybe extreme circumstances and in a small number of cases, be the tragic victim of the arrangement. Indeed to bring an unwelcome child—possibly an unwelcome and deformed child—into the world would be the ultimate tragedy. Of course there remains the overwhelming evidence that commercial surrogacy is 1522 simply not acceptable to public opinion and the country finds it deeply distasteful.
The Bill does not outlaw the act of surrogacy itself. It is not aimed at the surrogate mother; it is not aimed at the infertile couple. The Bill is aimed at the additional party, the third party, the commercial agency and the advertising of and for such agencies. It makes such services illegal and criminal. However, as long as private surrogacy remains part of the law there are a number of important and related legal questions which remain unanswered by the Bill. If private surrogacy is to remain as part of the law then those are questions to which one day Parliament will have to return.
I turn to the policy of the Bill. Some people require a clear assurance that the professional person in medicine or in law or in social work will not be caught by the Bill when he or she gives professional advice in connection with surrogacy and accepts a fee for that advice. It should continue to be possible for parties to obtain full professional advice if they want to have it, without having to risk exposing the counsellor to criminal proceedings.
Indeed the parties would be showing a degree of responsibility by asking for advice. The ones who are irresponsible are those who do not seek such advice. I believe that the Bill allows for such advice to be given without taint of criminality, but possibly that should be spelt out more clearly.
One of the main concerns which emerged from the debates in another place focused on the need for another assurance—an assurance within the Bill itself that a commercial surrogacy contract (and following the Warnock Report possibly all surrogacy arrangements) is unenforceable in the courts. It is generally believed that the courts will not enforce a commercial surrogacy contract and will not enforce many features of non-commercial arrangements. However, there is no case law on the subject.
It appears to me that the Government acknowledge that there are clear merits in a statutory provision which puts the law beyond possible dispute, but that they are experiencing some difficulty in drafting a suitable amendment. I would ask the Government to work a little harder at the drafting, and possibly bring forward an amendment at Committee stage.
Another question which has been raised is that of the burden of proof. Has the Bill got it right? Learned Members of your Lordships' House will no doubt focus our attention on the question of the burden of proof, if they consider that it ought in any way to be adjusted. With those few words and questions, I reiterate that I fully support and welcome the Bill.
§ 2.9 p.m.
§ Lord Meston
My Lords, I, too, should like to support the Bill. In its present form it will enact some of the least controversial recommendations of the Warnock Committee. Since the committee produced its report we have had to grasp a great range of expressions in the field of surrogacy: commercial surrogacy, domestic surrogacy, surrogacy for convenience, and last resort surrogacy. The report has provoked a public debate, but I venture to suggest until 1523 the events of last Friday in another place there had been too little Warnock and too much Enoch.
The Government are correct, and have been correct, in not being rushed into hasty gut reaction legislation, and I would agree that the balance in this Bill is correct. Society and Parliament have needed the detailed thought and specific recommendations of this expert committee, and the guidance has been given as to what should be done and how it should be done, and we have been very well served.
This Bill does not criminalise surrogacy as such. Clause 2(2) exempts the surrogate mother and the commissioning parents from any criminality, but the Bill reflects the view of most people that whatever else one may think about surrogacy, a child should not be the product of a commercial transaction. The law of the market place should have no part in a society and a legal system which treat the welfare of the child as the first consideration. The affluent should not be allowed to sidestep the laws of adoption. Indeed, this Bill is consistent with, and supplements, Sections 50 and 52 of the Adoption Act 1958 which prohibit the passing of money.
It is noticeable that in Clause 1(4) this Bill refers to "any payment", and I would suggest that it is correct that the temptation has been resisted to provide for even nominal payments, or to try to distinguish payments to compensate surrogate mothers from payments which would reward a surrogate mother, as has been suggested in some literature.
The comparison with adoption is a useful one and can be taken little further. Not only are financial considerations excluded in adoption, but also there is a delicate and stringent mechanism for ensuring the suitability of the prospective adopters, a mechanism for medical screening, for anonymity, for confidentiality, and for the proper integration of the child with the prospective adopters. There is also a mechanism to ensure the free consent of the natural parents.
Above all the welfare of the child is the first consideration in adoption cases. But in commercial surrogacy arrangements the welfare of the child is seldom the first consideration and is often the last. That in itself is one very good reason for making it criminal.
There are other good reasons which have been touched on by the noble Lord, Lord Prys-Davies. First, commercial surrogacy exploits and degrades the infertile and sometimes desperate commissioning parents. Secondly, it exploits, and can be exploited by, the surrogate mother. Thirdly, all kinds of things can go wrong, and badly wrong, if they are not carefully thought out and controlled, and all manner of human and legal problems can be created. For example, what happens if, during the pregnancy, the commissioning parents, or one of them, die or become disabled, or they separate? What if at a late stage it is found out that there are other candidates for the paternity of the child? What happens, as the noble Lord has said, if the child is born handicapped and is rejected by the commissioning parents; or if, the child having been taken in by the commissioning parents, there is no bond formed between the commissioning mother and the child?
1524 What happens if the surrogate mother decides to hang on to the child either because her instinctive emotions prevail or because, more cynically, she tries to extract more money from the desperate commissioning parents? At the end of the whole business what happens to the surrogate mother after she has handed over the child? She may well be suffering enormous depression and guilt. But the child itself is left in a kind of legal limbo. It will have a natural mother, a putative father, and a commissioning mother, the latter two not being able in law to adopt the child because cash has changed hands and because of our rigorous requirements for stepparent adoption.
There are two cases known to the lawyers. There is the Cotton case which has been mentioned. That was the case of an American couple trying to circumvent the requirements of their own adoption laws; and the, law, it must be realised, would not have intervened in that case if the surrogate mother had not succumbed to the temptation to try to double her money by talking to the press.
Then there was the case of A v. C decided in 1978 but not properly reported until 1985. I mentioned this in the course of the debate on the Warnock Report. There was a couple unable to have further children. The man became quite obsessed with the idea that he should have his own natural child and they formed the most extraordinary scheme. He went off to Bow Street Magistrates' Court to find a lady who was queuing up to pay her fine for prostitution. She was offered money to bear a child. She declined, but agreed to find somebody else and she found a 19 year-old lady who was not a prostitute but was on the fringes of the world of prostitution. She agreed to undertake the contract. She was provided with accommodation and the pregnancy was commenced by artificial insemination with the man's sperm.
Towards the end of the pregnancy the mother decided to keep the child. The child was born and then there was this grotesque scene in the hospital. The couple came to the hospital with the money, which was incidentally their life's savings. The mother said that she had changed her mind. They argued with her and in the course of the argument they offered her his secondhand motorcar worth £850 as an additional inducement to part with the child. The child was then effectively kidnapped by the couple for 10 days but returned to the mother. Wardship proceedings commenced. In the first instance the judge allowed the child to stay with the mother, but allowed the natural father to have access. But in the Court of Appeal it was said that the natural father should not have access to the child for the indefinite future.
One can only doubt the wisdom of parents who would undertake such an exercise; but one also has to bear in mind that probably there would be no prosecution under the present Bill, save possibly for the doctor who arranged the insemination. But it is also perhaps comforting to realise that in both wardship cases the Family Division of the High Court picked up the pieces and took the point which perhaps none of the parties involved had taken: that what mattered above all was the welfare and protection of the child who had been produced.
1525 This Bill is welcome. It will not prevent clumsy, amateurish arrangements of the sort that I have described. It will not prevent surrogacies among family and friends which are not commercial. They are often unselfish arrangements, but have the disadvantage that they distort normal family relationships. It will not be easy to detect and prove offences under this Bill and there is also the risk of these agencies being driven underground or abroad. But I suggest that is not a reason for failing to face the moral issue which faces society and outlawing these arrangements which society clearly would consider to be wrong.
Having said that, this Bill is not the last word. Another more positive side of the coin is the recommendation of the Warnock Committee of a system for providing help to the infertile. Also in time there may be some amending legislation. Having defined the rights and duties of the adults and the children involved in these arrangements, it may be possible to leave the door open for limited surrogacy arrangements on a non-commercial basis carried out by trained licensed professionals. But I do not suggest that the Bill should open that door today. For the time being this Bill will serve as well.
§ 2.17 p.m.
The Lord Bishop of Rochester
My Lords, we on these Benches understand fully the reasons for the urgency with which the Government have brought this matter before Parliament. We should not wish to oppose the Second Reading of a Bill which has already been approved in another place. However, I wish to see the Bill substantially amended in Committee.
I hope that the House will be ready to see not only that all commercial surrogacy arrangements are prohibited, but also arrangements made by non-profit making agencies as recommended in the Warnock Report. Another Warnock recommendation that I hope to see incorporated in the Bill is the one to which the noble Lord, Lord Prys-Davies, already referred this afternoon, that which would make all surrogacy arrangements legally invalid. Indeed, I hope that we shall look very carefully at all the relevant proposals in the Warnock Report when we consider this Bill in Committee. The restraints advocated so forcefully in the Warnock Report would ensure that surrogacy arrangements must always be private, non-contractual, unenforceable and non-commercial. In other words, as the noble Lord, Lord Meston, himself has just suggested, they must be unsolicited acts of purely personal generosity resting only on the informed consent of both parties.
I would very briefly mention only one other concern. It is that I do not think that this Bill does anything at all to help clarify the legal confusion which surrogacy in any form causes for the concept of maternity and the legal problem of motherhood which it creates. On this issue of surrogacy there is no doubt that the Churches are of one mind. I am glad that I am to be followed by the noble Duke, the Duke of Norfolk.
A Church of England report entitled Personal Origins, which was published only yesterday, states 1526 that the practical and moral problems of surrogacy are multiple and involve a confused complexity of relationships. It points out that strong bonding takes place between a woman and the child she bears in her womb and that this may lead to her being unwilling to let the child go to the contracting couple after birth. This report affirms strongly that surrogacy, especially where it involves the payment of money, undermines the dignity of women in the bearing of children whom they have no intention of mothering. It is quite clear that this Bill raises far-reaching questions of great importance and complexity. I trust that this revising Chamber will be able to improve this Bill before it becomes law.
§ 2.22 p.m.
§ The Duke of Norfolk
My Lords, I, too, welcome and support this Bill. It seeks to prohibit the commercialisation of surrogacy but it does not go far enough. It is inadequate. So I, with many of your Lordships, am planning some amendments and I think that when we can produce those amendments it will be a very much better Bill. Our Western civilisation depends on the Christian family, on seeking what is in the best interests of the child and preserving the stable society which we have learned to call Christendom.
When a married couple are infertile it produces a terrible distress for them, and I believe it right to encourage all reasonable scientific processes to enable them to have children. I also believe it a wonderful thing when adoption can be arranged when there are children available to be adopted by couples who long to have children. But I believe that all surrogacy should be outlawed because it means birth outside the family, and that is unnatural to man and unnatural to the Christian way of life that I believe in.
I believe that the human embryo should be treated as a human being from day one. I deplore all forms of abortion at all times. The Warnock Report was published almost a year ago. It came to the House, I think, in July. I have looked at it and read much of it. I wish to read out a small passage from the foreword of the report. It says in paragraph 5 of the foreword:There must be some barriers that are not to be crossed, some limits fixed, beyond which people must not be allowed to go. Nor is such a wish for containment mere whim or fancy. The very existence of morality depends on it. A society which has no inhibiting limits especially in the areas with which we have been concerned, questions of birth and death, of the setting up of families, and the valuing of human life, would be a society without moral scruples. And this nobody wants".Those very words show your Lordships the importance of the Warnock Report.
Personally I very much regret that the Unborn Children (Protection) Bill never passed through the other place and came to this House. I ask the Government to treat the whole issue much more urgently. I understand from statements made in the Hansard report of the other place—and I think the Prime Minister has recently answered a Question—that the Government are considering a comprehensive Bill which would come to light in two or three years. That is not good enough. This is the most urgent matter concerning we human beings, we creatures of God, and we must have a much more immediate answer. I wish to see some response from 1527 the Government in the form of a Green Paper, or, better still, a White Paper, so that it can be talked about and thought about by the Churches and the medical profession.
I support this Bill. I hope that once we finish this debate, when we go into Committee, we shall find means to strengthen it and make it a very much better Bill.
§ 2.27 p.m.
The Earl of Halsbury
My Lords, in following the noble Duke and the right reverend Prelate I shall not need to refer to the moral sentiments they have expressed beyond saying that I agree with them wholeheartedly. I shall therefore confine my remarks to the purely legislative aspects of what is before us.
As the noble Earl explained in introducing it, the Bill is minimal. As the Secretary of State for Social Services explained at the Second Reading in the other place, it was introduced in the immediate aftermath of the Baby Cotton case. It is a partial implementation of selected recommendations from the Warnock Report. On most of these the Warnock Committee was unanimous, but one was a majority recommendation.
Other matters, as we have heard, are reserved for a more wide-ranging Bill, but even within the restricted scope of surrogacy arrangements it is not a comprehensive Bill, although, so far as its positive content is concerned, I support it and I am at one with the noble Duke in saying that what it lacks is some more positive measures on other topics.
Let me therefore enter a caveat with respect to this promised more comprehensive measure. It depends upon counting chickens before they are hatched. Promised legislation has a habit of getting deferred from time to time, overtaken by important parliamentary priorities—more important, that is, to those who arrange our business for us. I, for one, will not be a party to a game of hide-and-seek, dodging about between a Bill in existence and a Bill promised for the future—the one before us and the one promised later—by excluding something from this Bill and then arguing afterwards that since it might have been included in this Bill but was not, it would be inappropriate in a more comprehensive Bill to be followed later. I should like an assurance from the noble Earl that that will not happen.
A particular matter left open is this: do we want a prohibition on all surrogacy, or only on commercially-arranged surrogacy? On the latter—the commercially-arranged surrogacy—the Warnock Committee were quite unanimous. On the former they recommended total suppression of surrogacy, by a majority. That majority seems to have been reflected in public opinion polls, in petitions and in Second Reading and Committee stage speeches in the other place. The only excuses for not including it in this Bill are that it may involve legal difficulties not contemplated in the Warnock Report—for example, difficulties of obtaining evidence—or that it is foreseen to interact with the more general measure promised for the future and will be dealt with then.
For example, with respect to direct arrangements there is the legal difficulty of deciding who is the 1528 offending party, if it is to be a mischief that one seeks to prohibit. According to the canon of Warnock, it should not be the mother, lest a taint of criminality be attached to the child. If, on the other hand, it is to be the donor, then this would fall within the scope of a Bill dealing with experimentation with human embryos. It could be argued, therefore, that it should be excluded from this Bill and put for consideration into the more comprehensive Bill. I should like the noble Earl to give us an assurance on that point.
I do not like the licence—perhaps "permissiveness" would be a better word, because I do not mean a licence in the legal sense—given to non-profitmaking agencies. These arouse deep suspicion, so far as non-profitmaking arrangements are concerned, because we all know there are grey areas between open fraud, on the one hand, and surreptitious skulduggery, on the other. Considerable apprehension was expressed in the other place with respect to this problem. It has been referred to by the right reverend Prelate and by the noble Duke. I myself would add my own emphasis on the need to consider this very seriously.
My next point concerns the legal question of enforceability, and I do not need to repeat what has already been said about this. It must be cleared up, and I cannot see any good reason for not clearing it up in this Bill.
There is the same need for clarification of the legal status and definition of what is meant by "a mother" in relation to her implanted child. What are we waiting for? Perhaps the noble Earl will tell us what is open for inclusion in the future comprehensive Bill, and why it cannot be included in this one. Here, again, I am with the noble Duke in the belief that we need to do some revising in Committee.
Lastly, there is the sanction against professional participation in implementing any illegal surrogacy agreement. That was unanimously recommended by the Warnock Committee, and it is a most powerful provision, because it would be quite impossible to carry out surrogacy, as it is so called, without the assistance of professional people. And once you have included that provision in the Bill, it is almost sufficient to make any other recommendation unnecessary.
In general terms, I am afraid that we have to face our national reluctance to make up our minds with any sort of finality by taking clear-cut decisions. Do we or do we not think that surrogacy is undesirable? And, if we do, will we or will we not go to the limit of what is viable by statute in seeking to prohibit it? This Bill deals with surrogacy on selected terms. The only two excuses for not making it comprehensive are, first, that statutory viability of some provision or other needs further study and we should not enact what we cannot implement; and, secondly, that matters not provided for in this measure will foreseeably interact with the subject-matter of the more comprehensive measure projected, and consequently should be deferred in deference to that. I hope that the noble Earl, in winding up, will give us assurances on that point.
One last point concerns the Long Title of the Bill, which refers to surrogate motherhood. I think that this is a most ambiguous term. A surrogate is a substitute. You cannot have a substitute for a mother—on one 1529 definition of the word "mother". The term we need—I am just coining a new scientific term—is allogenetic pregnancy; that is to say, pregnancy resulting from a genetic make-up that is not the make-up of the pregnant woman. If we could suppress this popular term of surrogate motherhood that has grown up in favour of a term that really says what it means—that is, allogenetic pregnancy—it would be a very good thing. I will not ask the noble Earl for an assurance on that point, because I am sure he will first want me to explain how to spell it. I support this Bill so far as its positive recommendations are concerned, but I hope we can add to them.
§ 2.36 p.m.
§ Lord Craigmyle
My Lords, so able and all-inclusive have been the speeches made already in this debate that I am at a loss to know what to say, except that I profoundly agree with almost everything that has been said by the right reverend Prelate the Bishop of Rochester, my noble friend the Duke of Norfolk and the noble Earl, Lord Halsbury.
It seems to me that this Bill, with its concentration on commercial agencies, must have been drafted by someone with a twisted, puritanical sort of mind. There is no reference to whether surrogacy is right or wrong, and therefore whether it is moral or immoral to cause surrogacy or to make arrangements for it. The question of right or wrong seems to depend entirely on whether or not money passes. If something is good, it is right that people who do that good should be paid for it. If something is bad, it is not made good just because people are not paid for it. The commercial basis—which is what this Bill is about—is quite irrelevant.
If we are going to tackle the problem of surrogacy agencies, we should tackle them root and branch. We should take out this commercial business and come back to what the Warnock Committee recommended—that all should be excluded. That seems to be the important point on the commercial aspects.
I should very much like to support those who have already spoken about the legal status. In the whole of the subject matter covered by the Warnock Committee there are not many areas on which it speaks as clearly and definitely as it does on surrogacy. Its conclusion that all surrogacy agreements should be illegal contracts and therefore unenforceable in the courts seems to me to be one that should be incorporated in this Bill, though I think that that would require a new clause.
At the same time it is necessary, particularly if that is to be done, that the child should clearly be known in law as the child of the mother who bore it and not of any other woman—its genetic mother, the sponsoring mother, or anyone else. It should be the child of the mother who bore it. There are perhaps some difficulties with the adoption law. Clearly, if a surrogate mother—I am sorry to carry on using the term, because I agree with the noble Earl, Lord Halsbury, that it is not a satisfactory one—wishes to carry on with the agreement which she unofficially made and hand over the baby to what is, for lack of a better term, the sponsoring mother, the latter must be 1530 able to adopt. But if there is a difficulty in the adoption law, as the noble Lord, Lord Meston, said—and I think the Warnock Committee clearly hinted at this—we should have to attend to it. It may be a little complicated to do it in this Bill, but that will be a question for those who know about these matters and who will no doubt have the advice of the noble Lord, Lord Meston, in due course.
If the position of the child is not clear-cut in law so that the rights and responsibilities are well known, your Lordships may see difficulties with rejection at a later date, with the sponsoring mother going back to the mother who bore the child, saying, "Well, after all, this is your child. The law cannot say that I was bound to take it. You must have it back and look after it yourself." This takes my mind back to a case of surrogacy that your Lordships will know about, though it happened a very long time ago. I am thinking of the case of the partiarch Abraham, whose wife, Sarah, bore no son, so at Sarah's suggestion he went to her servant girl. She bore him a son and then eventually of course Sarah did have a son and Ishmael and his mother were put out. It was a very distressing situation for Ishmael and deeply psychologically damaging. If the law could be clear cut, so that the responsibility remains with the sponsoring parents because the child has been formally adopted, then such difficulties could largely be avoided.
§ 2.41 p.m.
§ The Marquess of Reading
My Lords, when your Lordships' House debated the Warnock Report towards the end of last year, attention was mainly focused upon the matter of the human embryo. At that time I had the honour to make my maiden speech and I, too, feel the deepest concern at the faltering and inconsistent treatment proposed by the Warnock Committee for individual living, growing human beings.
However, the Bill before us today deals with another aspect of the new reproductive technology. It is the matter of surrogate motherhood. From the moment of handing over, he or she is the child of the two receiving parents—the commissioning parents, as they are sometimes called—and has nothing more to do with the mother who has carried him. The child may of course, thanks to the new appropriative surgery, actually be the child of the comissioning couple. For example, they may have provided both egg and sperm, brought together and fertilised in the laboratory by the new technique of IVF and subsequently implanted in the body of the surrogate mother. Alternatively, the surrogate mother may have provided the egg herself, with the commissioning father providing the sperm. But whatever the child's genetic origin, the key factor in the whole process is that the mother who has carried that child for nine months disposes of it as soon as possible after it comes into this world.
The fundamental questions therefore are: should surrogacy be permitted, should it be encouraged, should it be banned or should it be allowed under certain conditions? I am happy at this point to align myself with the conclusions of the majority of the Warnock Committee. In chapter 8 of its report, it notes that surrogacy is not at present unlawful though surrogacy agreements are certainly contrary to public 1531 policy. Following the logic of this position, the Warnock Committee proposed that legislation be introduced making the setting up or carrying on of a surrogacy agency a criminal offence. The committee believed that these should include both profit and nonprofit-making organisations. It also believed that professional people and others who knowingly assist a surrogate pregnancy to take place should be criminally liable.
Having said that I am in favour of the proposals of the Warnock Committee on surrogacy, though I dissent profoundly on the matter of the treatment of the human embryo, your Lordships will understand something of my deep disappointment with the narrow contents of this Bill. We must be grateful for the careful and thorough treatment of advertising in the Bill. This is in Clause 3, which is both radical and far-reaching. The degrading practice of surrogacy must never be advertised in any form and, so far as I can see, every possible loophole has been carefully plugged by Clause 3 to preclude every kind of advertising. If surrogacy is degrading, surely you must prevent advertising.
I give a warm welcome to Clause 3, but Clause 2 is weak, far weaker than the strong medicine rightly proposed by Lady Warnock and her committee. I should like to agree with the right reverend Prelate by drawing attention to the failure of the Bill to regulate the activities of non-profit-making institutions, in failing to follow the wise advice of the Warnock Committee. The Bill leaves open a huge loophole. I refer to the activities of bodies already in existence which have, over the past 15 years or so, specialised in what I might call sexual and marital matters. They offer services which lead to the wider use of contraception for the practice of induced abortion. They now have a new product-surrogacy. In marketing terms, they can slot in this new product within their existing distributor network. There will be no invoices for services rendered but there will be anonymous donations.
I shall not embark upon any discussion of contraception or abortion, or of those people to whom such services might justifiably be offered, whether at public or private expense, or as charitable activities—which they seem to become in certain circumstances. However, I wish to stress that the various networks which such organisations have established—and there are several—are ready and waiting to take up the task of assisting potential parents to discover potential surrogates.
The Bill as it stands will allow them to do so and thus to spread the practice of surrogacy swiftly and effectively through an existing infrastructure. I do not believe that this is the wish of your Lordships' House, nor of the medical profession, nor of the Churches, nor of the Government. I believe that each and every kind of agency must be prohibited so that the demeaning practice of surrogacy is kept within bounds, even if we cannot totally preclude it.
If we pass this Bill as it stands, the country well may heave a sigh of relief and say, "Surrogacy has been dealt with". But the country will be bitterly disappointed. A serious gap is left, which we in this House must see to now. This gap has been mentioned 1532 with concern on more than one occasion during debates in another place. If surrogacy is to be dealt with now rather than be left to the promised major legislation in 1986 or 1987 covering all the other Warnock topics, then let us at least do it properly.
I conclude by reminding your Lordships that in deterring as far as possible those who wish to see the practice of surrogate motherhood spreading in our society, we have—through a strong Bill against surrogacy—the interests of every child at heart. That is the reason why passing such a Bill is a good and noble act. A child's deepest relationship is with his mother. That relationship begins at conception—as the noble Duke pointed out—and ends with the death of the mother or child, whichever is the sooner. Those deep, emotional and psychological links begin at fertilisation and are strongly-shaped by those nine months in the womb.
To fragment motherhood would be a heavy responsibility. It would produce an anguished question of identity for any child; the terrible dilemma summed up in the question, "Who is my mother?". Fragmented motherhood ought to be impossible. The womb should naturally lead to the home. The one who carries should be the one who cares after birth. This is the natural order. I believe too that it is a God-given order. We put these things asunder at our peril.
Those who would tear apart, for whatever reasons, the constituent aspects of motherhood store up trouble for society and the individual child. Children must come first. I entirely support the noble Duke. We must say no to surrogacy of all kinds, and I hope that the Bill will be amended to that end.
§ 2.48 p.m.
§ Viscount Sidmouth
My Lords, the contents of this Bill evidently pose a problem to those who, like myself, feel that a much more comprehensive Bill is needed—and soon—covering many more of the issues raised by the Warnock Report. On the one hand, this Bill calls for support on the basis that a crumb is better than no bread. On the other, its passing into law might serve as an excuse for taking no further action for a very long time. I have seen no statements from the Government which give any grounds for thinking that there will be any legislation in the life of this Parliament, for example.
The declared tactics behind the Bill have been to aim at a target on which the Warnock Committee were unanimous and on which there would not be much opposition in another place, thus ensuring a quick passage for the Bill.
In order to do that all moral issues have been rigorously excluded and we are asked to ban commercial agencies, which organisations it can be safely predicted will have few defenders.
It may be felt that the whole issue was precipitated by the Baby Cotton case and the uproar it provoked in the popular press. Even so, I suggest that the underlying feeling was disgust at the whole rent-awomb concept involved in surrogacy rather than the relatively minor part played by the commercial agency.
I believe that in its limited role this Bill is being too timid. It should have gone along with the majority of 1533 the Warnock Committee in coming out against all forms of surrogacy, and I support the point that has already been made. Certainly it will not eliminate the money element; and I do not refer only to the payment to the surrogate mother herself. I believe that it would be right to prohibit commercial surrogacy and if you are banning only that, commercial arrangements made directly between a woman and the commissioning parent.
Turning to matters of more detail, which will obviously be raised in Committee, there seems to be an obvious omission in that nothing is said about the status of the child itself. When the Warnock Report was debated in this Chamber the noble and learned Lord, Lord Denning, made a powerful speech in which he drew attention to what appeared to be a legal vacuum in this respect. Much can go wrong during the nine months of pregnancy. Any of the parties can change their mind. Indeed, the child might be born so deformed that nobody wants it. Surely, for the sake of the child, it should be laid down in law that the child belongs to the mother bearing it.
Finally, there is the question of making surrogacy arrangements legally invalid; again, in line with the recommendations of the Warnock Committee. During the debate in another place the Minister seemed to indicate that he would not be against this in principle, although he declared that in his opinion, even as things stood, such arrangements would not be enforceable at law. In that case, why not put the matter beyond all doubt by making it so by statute now?
In conclusion I submit that such minuscule bites at the cherry are not a very satisfactory way of legislating. The large majority given to Mr. Enoch Powell's Bill when voted on in another place indicates a widely held view in this country and, I believe, the need for comprehensive legislation on the subject at an early date.
§ 2.53 p.m.
§ Lord Swinfen
My Lords, I also welcome this Bill and agree with very nearly everything that has been said. In fact, most noble Lords who have spoken have taken the wind well and truly from my sails. However, I am a little disappointed that there are no noble Baronesses speaking on the Bill so as to give us the female rather than the male point of view. We are all capable of being fathers, but none of us, I am sure, is capable of being a mother; much less are we going to give birth to Mahomet—but that is purely an aside.
One point that has not been dealt with is Clause 4, which relates to the penalties for offences under Clause 2. I gather that at the moment level 5 is some £2,000. From figures that were bandied about in the newspapers at the time of the Cotton case it strikes me that a penalty of £2,000 is ridiculously low, since it could be included in any fee, even as a contingency. I think that we should look very carefully at that point in Committee with a view to making the penalty very much stiffer. I know that from time to time the levels of financial penalties are reviewed by the Government and this House, but I sometimes wonder whether they always keep up.
I entirely agree with suggestions that we should outlaw all arrangements for payment of any kind for 1534 the mother. She may be called a surrogate mother, but if she gives birth, she is a perfectly normal and natural mother, and I cannot think of a better term. It means that she is also legally responsible for the child until some other arrangement is made. We should make certain that payment in cash or kind is very definitely outlawed.
Again I agree with others that non-profit-making agencies of any kind should also be made illegal. As one noble Lord said, it is perfectly feasible for a charitable body to make arrangements as an act of charity and then at some time in the future, from some unknown donor or a third party, or even through a will, a fairly substantial gift may be made. It is not at all impossible. I work for a charity—not a charity that would be involved in this matter—and part of my job is raising money. Part of my tactics are to make certain that people in the future will leave money to the charity. That can be several years ahead. It is long-term planning, and the same can be dealt with by those charities.
Also I am a little worried about the possibility of making any surrogacy agreements totally invalid at law. I have only one problem on it, and that is what happens if the baby who is born is disabled either mentally or physically. The baby must be properly looked after. That is the only worry I have about making such agreements totally illegal and unenforceable. We must make certain that the child is properly cared for and brought up responsibily.
The other and final point is that I entirely agree that any professional involvement of any kind in providing surrogacy services should also be made illegal. That I think would help to wipe it out.
§ 2.57 p.m.
§ Viscount Brentford
My Lords, I, too, welcome the Bill, but I am very much looking forward, as are nearly all other speakers in the debate, to my noble friend explaining why the Government have not accepted the recommendation of the Warnock Committee on making all surrogacy arrangements illegal contracts and therefore unenforceable in the courts.
I should like to mention, again as several other noble Lords have, the question of the legal status of the child. As has been said from the outset of the debate, the child is the one who pre-eminently needs to be looked after. A child who is in any way going to switch mothers after nine months is going through one trauma. I should like to think that your Lordships' House could try to clarify the law and the legal status of the child to avoid voluminous litigation in the courts in the future. The noble Lord, Lord Meston, has already summarised the litigation in the past here. There has also been litigation and a lot of publicity about the question in the United States. There could of course be three ladies involved—the commissioning mother, the surrogate mother and also a donor mother—and the legal complexities are enormous.
The Warnock Committee clearly recommended that legislation should provide that when a child is born to a woman following the donation of another's egg the woman giving birth should for all purposes be regarded in law as the mother of the child and the egg donor should have no rights or obligations in respect of 1535 the child. I very much hope that in Committee a clause to that effect can be included. I appreciate that if the position is to be that the commissioning mother will adopt the child, there may need to be some variations in the adoption legislation. However, I very much hope that we shall be able to clarify the law on this issue. With that, I shall conclude.
§ 3 p.m.
The Earl of Caithness
My Lords, we have had a very useful and most interesting debate this afternoon. It is clear that the subject is very much one of still great controversy in your Lordships' House. Perhaps I may make some general points first. I am grateful for the welcome that all noble Lords have given the Bill, limited as it is. I should like to refute the allegation that the Bill has come in just because of the Baby Cotton case. No, my Lords, that cannot be accepted. Ministers were worried about this problem for a very long time. An example of their worry was the fact that my right honourable friend commissioned the Warnock Report in the first place.
Perhaps I may say this about the proposed amendments which have been mentioned by all noble Lords. As I explained in my opening speech, this is a limited Bill, dealing with one very small area of the problem, which is commercial agencies. If there are going to be many amendments, I wish to remind all noble Lords that it is far better for us to try to get this Bill through, limited as it is, to ban commercial agencies, on which there is virtually unanimous agreement. If we try to expand it and it has to go back to another place, it could be that we do not get even this little Bill through. Much as I do not want to stifle debate, I think that this ought to be borne in mind. Perhaps I may say, particularly to my noble friend the Marquess of Reading, that there is no chance for any Minister or any official of the Department of Health to breathe a sigh of relief when this Bill is through: the amount of discussion that is taking place in the department will mean no relaxation for any of us.
All noble Lords have touched on the point of making surrogacy contracts unenforceable and whether the contracts should be unenforceable at law. This was started by the noble Lord, Lord Prys-Davies, who I admire for his stamina today. He has had a long stint. I am sure all noble Lords would agree that an agreement by a surrogate mother to hand over a child is and must remain unenforceable. Indeed, Section 85(2) of the Children Act 1975 already provides that a person cannot surrender or transfer any parental right or duty. On the other hand, if the commissioning parents withdraw when the surrogate mother is already pregnant, it might be right that some of their obligations, for example to meet medical or other expenses, or to compensate for earnings lost because of the pregnancy, should be enforceable against them. That is just one example of how complicated this whole area is.
All noble Lords raised the point of why not ban all the surrogacy and all commercial surrogacy? Particularly my noble friend the Duke of Norfolk raised this point. The Bill has the limited objective of prohibiting the operation of commercial surrogacy agencies in this country, as I have said, and the advertising of or for 1536 surrogacy services. It was decided that wider questions, such as the operation of non-commercial surrogacy agencies, whether the surrogate mother or the commissioning parent should be liable; whether all forms of commercial surrogacy should be prohibited, should be tackled in the comprehensive legislation which the Government have said they aim to introduce. The issues raised by these matters are complex and are very controversial. Because they call for more extended consideration and discussion, in our view it would be wrong to include them in this limited Bill, which sets out to prohibit what virtually everybody has agreed, which is just the banning of the commercial agencies.
All noble Lords again raised the question of profit and non-profit-making agencies. The Bill prohibits the operation of all commerical surrogacy agencies, whether or not they are profit-making, if they charge or take fees. That is the test. The Bill would allow a non-fee-charging agency to operate but to our knowledge no such agencies exist at present. The Warnock Committee itself was not of one mind on this subject as two of its members saw some scope for the non-commercial agencies—yet another example of how difficult it is to get unanimity.
All noble Lords, I think, raised the problem of who is to be regarded as the legal mother and the legal status of the children. The Bill does not deal with this topic because of its limited scope. I am sure that the House will agree that this is an important and complex legal issue which it would not be right to cover in a Bill whose principal purpose is to introduce quickly a ban on the operation of commercial surrogacy agencies so as to prevent their development in this country. As the law stands at present, a child born to a surrogate mother where she is the genetic parent would be illegitimate. In such a case, by virtue of Section 85(7) of the Children Act 1975 the child's mother would normally have the parental rights and duties. My noble friend Lord Brentford, with his experience, will know quite well that the English Law Commission has already recommended reform of the law regarding illegitimacy. This, too, is too complex for the Bill in its present form.
The noble Lord, Lord Prys-Davies, and the noble Earl, Lord Halsbury, raised the question of professional people. It is reasonable, I believe, for a professional person to provide advice and to charge a normal fee for activities outside those listed in Clause 2(1). This could include assisting the parties with information about surrogacy and its likely consequences, interpreting the law—I would not like my noble friend Lord Brentford, as a solicitor, to be taken to court for giving a client advice on the law—and assisting them to draft a contract. What would not be permitted, however, is for that professional person, on a commercial basis, to conduct any negotiations or to facilitate them with another party with a view to making a surrogacy arrangement.
The noble Lord, Lord Prys-Davies, mentioned the burden of proof. The burden will be on the prosecution to prove beyond reasonable doubt that there has been an act prohibited by the Bill. However, Clause 2, subsections (4) and (6), provides a defence if the defendant can show, on the balance of probabilities, that he did not know that any payment 1537 had been made. Again, the noble Lord and also the noble Lord, Lord Meston, raised the problem of bringing into the world unwanted or handicapped children. That only goes to show that it is right for the Government to introduce this limited Bill at this stage to try to limit that area of potential damage.
The right reverend Prelate the Bishop of Rochester asked whether we had noted the Church of England's report to which he referred. Indeed we have. We are grateful to have the Church's views. We accept that there are a number of important legal issues about the status of surrogate children on which the Bill is unclear. But for the reasons I have given, which I hope the right reverend Prelate will appreciate, this is a very complex area.
My noble friend Lord Reading asked whether donations to a non-commercial agency would be caught by the Bill. The Bill does prohibit the making of any payments made at any time in connection with a surrogacy arrangement. I hope that this is clear to my noble friend Lord Swinfen, too. Thus no agency that charged fees or received payments would be legal under Clause 2. My noble friend Lord Swinfen referred to level 5 being too low. I must tell him that level 5 is the present maximum that can be levied in the magistrates' court, and as these matters are going to the magistrates—
§ Lord Swinfen
My Lords, magistrates can impose fines up to £20,000 under, I think, the Local Government (Miscellaneous Provisions) Act, as it now is, with regard to offences regarding sex shops.
The Earl of Caithness
My Lords, my noble friend prevented me from going on to say that this is a matter I shall look at and to which we shall no doubt come back at Committee stage.
I think that I have answered all the points that have been raised by all of your Lordships and I apologise for not having dealt with individual points. However, I should like to mention my noble friend Lord Craigmyle who virtually took to quoting from the Bible. I lost my bet about whether it would be my noble friend or the right reverend Prelate who would do so!
This is a very complex area and the Bill is very limited. I hope that, despite any discussions which we may have in Committee, we can get this limited piece of legislation on the statute book before the end of this Session. I hope that your Lordships will give the Bill a Second Reading.
§ The Duke of Norfolk
My Lords, before the noble Earl sits down, if it is in order, I should like to say that he has not answered one question; namely, when shall we see some type of comprehensive Bill come forward on the Warnock Report? We have heard, and it can be found in the Hansard of the other place, that it will come forward in this Parliament. However, I have also heard that it will come forward in 1987 and so on. That is a very long way ahead. I know that the Churches are, in effect, hungry to get their teeth into this matter because they think it so vital, and that the medical profession is very interested in it too.
With the usual loyalty to the Government of all those on these Back-Benches, I ask the noble Earl to do 1538 everything he can to get us a timetable, because so many matters depend upon it. If we were told that the Government were going to deal with this matter very quickly, we would possibly allow this Bill—this incomplete Bill—to go through. However, if the Government are not going to do anything for two years, that is quite a different matter. There are also all the other matters in the Warnock Report. Therefore, can my noble friend enlighten us a little about the plans?
The Earl of Caithness
My Lords, I apologise to my noble friend because he did raise the point about whether or not we would bring forward a White or Green Paper. The Warnock Report alone has raised such a number of controversial matters throughout the country that we in the department are having great difficulty in finding anything to put together. Of course I cannot forecast what will appear in the Queen's Speech. However, I can assure my noble friend that we are trying to introduce a Bill as soon as possible. Perhaps I may refer again to my opening speech and the quotation of my right honourable friend the Prime Minister, who earlier this week in another place said that the Government plan to introduce a comprehensive Bill on these matters as soon as practicable.
On Question, Bill read a second time, and committed to a Committee of the Whole House.