§ 12.19 p.m.
The Earl of Caithness
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Caithness.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MURTON OF LINDISFARNE in the Chair.]
§ Clause 1 [Meaning of "surrogate mother", "surrogacy arrangement" and other terms]:
§ Lord Denning moved Amendment No. 1:
Page 2, line 18, leave out subsection (9) and insert—
("(9) Any such arrangements are void and unenforceable whether done with a view to payment or not.").
§ The noble and learned Lord said: I was unable to be here for the Second Reading debate, but perhaps I may remind your Lordships of the origin of this Bill, which is of considerable importance. It has arisen all because of Baby Cotton. A husband and wife in America were anxious to have a child, but the wife was infertile. It may be that she had no uterus or that the Fallopian tubes were blocked or whatever. They went to a commercial agency which then operated in this country, and advertised. As a result a Mrs. Cotton was induced for money to agree to bear a child for this couple. That is what happened. No doubt it was done by artificial insemination. The husband provided the sperm and the doctor or somebody inserted it into the woman's body—Mrs Cotton's body—and as a result she conceived and bore this baby. She did it for money. The baby was immediately handed over to the parents and, after court proceedings, it was taken by them to the United States.
§ The public were outraged that such a commercial agency should operate surrogacy agreements of this kind. Therefore, the Government have introduced this Bill to deal with that particular evil: namely, the commercial agency for surrogacy. However, the Bill goes further than the Baby Cotton case. The subject is of vast difficulty, indeed, it is one of the items in the Warnock Committee's Report and we shall have to wait for a year or two before legislation takes place as regards that report. Meanwhile, this Bill deals with one or two points beyond the Baby Cotton case, as indeed it should do. That is why I am suggesting these amendments which I hope are not controversial.921
The first amendment deals with an ambiguity left by the concluding provisions of Clause 1 which deals with surrogacy arrangements. It says in a very neutral way that:
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".
I should like to say, and I should like this House to affirm, that all such surrogacy agreements are unlawful, void and unenforceable. To my mind they are completely contrary to public policy because they destroy the bond which should exist in nature between the carrying mother and the child whom she bears.
Let us consider the situation. A man's sperm—of which she does not know the origin—is injected by a doctor or somebody else into the woman's body and then she conceives and bears a child which she is immediately to hand over to some commissioning mother. I say that those agreements are void and unenforceable. Indeed, I am supported in that view by two passages in the Warnock Report. On page 43 it says:
There is little doubt that the Courts would treat most, if not all, surrogacy agreements as contrary to public policy and therefore unenforceable".
That is the position as it stands at the moment. However, in addition, the report goes on to say in black letters on page 47:
We recommend that it be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the Courts".
Let me give some illustrations. Let us suppose that the carrying mother has the baby and then the commissioning mother says, "It's my baby" and sues the carrying mother for the baby or for damages for not handing it over. Of course the courts would reject that claim by the commissioning mother and would say that the natural mother, the carrying mother, should have the child. That is one aspect, but there is another. Suppose the carrying mother has the baby and then the
commissioning mother says, "Oh, I have changed my mind. I don't want that baby any more. I am separated from my husband"; or it may be that the baby is deformed or she says, "I don't like the look of it". Let us suppose that the commissioning mother says. "Oh well, I'm not going to honour that agreement. I'm not going to have the child". Can the natural mother sue? Of course she cannot. To me it is a plain as a pikestaff that all these surrogacy agreements are unenforceable and void whether they are done for payment or not. That is why I move my first amendment. I think that it would be a good thing to put that provision into the Bill at this stage and not leave it to the neutrality which the Bill gives, apparently, to all surrogacy agreements at this point. My first amendment says that all such arrangements,
are void and unenforceable whether done with a view to payment or not".
§ I beg to move.
§ Lord Houghton of Sowerby
First, I ought to remark that this is the only amendment which has been tabled on the Marshalled List by the noble and learned Lord, Lord Denning, of which we have had prior notice. All the rest of the amendments are new and I am seeing them for the first time. We evidently do some of our business in great haste and we can hardly get here 922 before seeing amendments that we have not seen before. Out of 14 amendments on the Marshalled List, 11 are new. I make no undue complaint about that, but it means that one has to study this very carefully in a very short space of time before the sitting of your Lordships' House begins.
However, the question which I want to ask is this. Having listened to the noble and learned Lord very carefully, I am puzzled to know in what respect there is a real difference between the subsection on page 2 and the amendment. Does the amendment do something which the original words do not do? When we are amending words in a Bill we want to know the significance of the change. The difference which I seem to notice concerns whether arrangements are lawful or not. I do not know whether or not that has anything to do with the law of contract.
However, I am sure that the noble and learned Lord had a very definite purpose in his mind. I am sorry to say that, having listened to this remarks, I was not very clear about what he had in mind. I apologise for my suspicions, but when dealing with a Bill of this delicacy and with such an emotional background I am always very keen to know what changes mean and what words mean. After all, yesterday we saw some very subtle work going on as regards another Bill which led your Lordships into very serious difficulties after the noble and learned Lord had left us. I hope that he will forgive me for raising this point.
§ 12.30 p.m.
§ Lord Craigmyle
Is what the noble and learned Lord trying to do really so obscure? The law at the moment is doubtful. The noble and learned Lord has told us clearly what he thinks courts would do. But the Bill as at present drafted talks aboutarrangements whether or not they are lawful and whether or not they are enforceable".The noble and learned Lord's amendment simply says that the arrangements are "void and unenforceable". It seems to be a perfectly straightforward clarification, and I cannot see the difficulty that the noble Lord, Lord Houghton of Sowerby, finds.
If a surrogate mother bears a child in spite of the arrangements by which it is done being unlawful, the child, by the next amendment, will be her own, and that will make it clear. This amendment, so far as I can see, is not going to make it unlawful to have a surrogate child, but it will make all the acts concerning the arrangements unlawful. If I have understood the noble and learned Lord correctly, that is what he is getting at.
I rise to support with all the strength I can muster, the noble and learned Lord, Lord Denning. My support for these amendments stems from my firmly held belief that the process of creation is a divinely ordered pattern, and if we try to interfere with it we do so at our own peril. Can we, by surrogacy or by other experiments which have been mentioned in other Bills, improve on the divine miracle of creation, whether it be a blade of grass, an elephant or a human being that is created? Can we really, by juggling with genes and in other ways, better the divine plan of creation?
I firmly believe that if we start experimenting in this way with forces which we cannot fully comprehend we 923 shall, like the sorcerer's apprentice, be sowing the seeds of our own doom. I hope that the right reverend Prelate will give support from the spiritual Benches. One could perhaps argue—and I expect that several of your Lordships will think on these lines—that after birth, a child becomes the responsibility of its parents and of mankind at large, but I cannot accept the argument that before birth, in the prenatal stage, which is what this Bill is all about, that argument applies.
The argument I have adduced is of course basically a Christian argument, and I say once more that I look forward to any views that the right reverend Prelate may have; but I should like to say also that, as your Lordships are aware and as I have mentioned on various occasions in your Lordships' House, we are not only a multi-ethnic but a multi-religious society. There are now in this country more Moslems than Methodists: there are one-and-a-quarter million of them. There are a great many Jews. In the view of all three monotheistic religions, Christianity, Judaism and Islam, such experiments are unacceptable.
To the Moslems, such experiments, and surrogacy, and so on, are totally abhorrent. So abhorrent are they to the Moslem mind that such arrangements could never even be discussed. Therefore, I hope that your Lordships will support these amendments moved by the noble and learned Lord, bearing in mind that this matter cannot be dealt with in purely secular terms.
§ Lord Edmund-Davies
I rise briefly to support the noble and learned Lord in relation to this amendment. It has the desirable aim—and succeeds in that aim—of introducing clarity where there is at present doubt. Clause 1(9) reads:This Act applies to arrangements whether or not they are lawful and whether or not they are enforceable".The noble and learned Lord's amendment makes it clear by the provision not that they are illegal, because illegality is dealt with in Clause 2, but that they are,void and unenforceable whether done with a view to payment or not".Therefore, we know where we are. We are not voting on a doubt; we are voting on a clear and certain point. I commend and support the amendment.
§ Lord Campbell of Alloway
May I support the amendment of the noble and learned Lord, Lord Denning, which is a requisite aid to clarification of the law which Clause 1(9), if one reads if carefully, impliedly recognises is uncertain for the reasons more cogently put than I could put them by the noble and learned Lord, Lord Edmund-Davies.
§ Lord Somers
I too, should like to support this amendment for a reason additional to those spoken of so far. I agree with my noble friend Lord Buckmaster on the ethical side of this process, but there is also the practical side. When the child grows up or grows a little older he may have a feeling of great uncertainty as to who is his real mother. A feeling of certainty is very necessary for any child. To have that feeling of uncertainty in a relationship is very bad indeed. It gives him a bad start to life, and one that we can condemn altogether.
§ The Earl of Lauderdale
I should like to support the noble and learned Lord, Lord Denning. In doing so I should like to say something extra. I cannot think why, when we have had night after night debating a trivial matter of mere local government and of physical arrangements with regard to our society, a matter fundamental to our lives—the creation of human beings—is left to a Friday midday with a very thin Committee. The usual channels have been quite unusually stupid and unworthy of your Lordships' House in so arranging the business that it comes at this time. Having said that—and no doubt the words will have carried to the two Front Benches—I should like to add my word of support to this amendment.
§ Lord Swinfen
In general, I should like to support the noble and learned Lord's first amendment. However, I am convinced that we need to get this Bill through Parliament, and we are coming towards the end of the summer. There is only about another month left. The Government, as normal, will tell us that they have not got any time at all. Being a Government Bill, I am not sure that I really believe it.
I am not an ex-Master of the Rolls, only the grandson of a Master of the Rolls, and that does not qualify me in quite the same way, but, as I understand the noble and learned Lord's amendment, if he was to withdraw it and come back at a later stage with only its first line, it would leave the Bill clearer but still referring only to commercial arrangements. I feel that to leave the second line of his amendment in brings into the Bill non-commercial arrangements, and that widens the scope considerably and changes the nature of the beast completely. So far as I am concerned, I should like to see this Bill on the statute book in its limited form rather than lost altogether.
§ Lord Prys-Davies
Although this amendment is moved by the noble and learned Lord, Lord Denning, and has the support of the noble and learned Lord, Lord Edmund-Davies, I find that I am persuaded by the arguments of the noble Lord, Lord Swinfen. We are grateful to the noble and learned Lord for the amendment, but I fear that it is too widely drawn, at least at this stage. We agree that all aspects of commercial surrogacy should be unenforceable at law, that they should not be converted into a contract enforceable by the courts. But I am not so sure that every feature of non-commercial surrogacy should be outside the law of contract.
This point has been made in the other place. In the Second Reading debate the Minister drew our attention to one feature which possibly should be enforceable. I suggest that rather than adopt this all-embracing amendment, supported though it is by the noble and learned Lords, Lord Denning and Lord Edmund-Davies, it would be wiser to wait to see what view the Government take about the role of voluntary surrogacy as an act that can cement a marriage and support a family. I should be extremely cautious before asking the Committee to support the amendment as drawn.
The Earl of Caithness
It is with some trepidation that I rise to debate this matter with such a noted expert as the noble and learned Lord, Lord Denning, 925 and even more particularly now that he has the support of the noble and learned Lord, Lord Edmund-Davies. The noble and learned Lord, Lord Denning, said that this Bill arose as a result of the Baby Cotton case. I am sorry that he was not here on Second Reading and I am equally sorry that my noble friend Lord Lauderdale was not here, but I hope he has read the proceedings because they set in context what this Bill is about. I can only reiterate that it was not as a result of the Baby Cotton case that this Bill came forward. Ministers were concerned for a long time before that case about commercial surrogacy arrangements, and that is why we asked the noble Baroness, Lady Warnock, to undertake her inquiry. I am glad to see that she is in her place today. I am grateful for the help and useful words of my noble friend Lord Swinfen and of the noble Lord, Lord Prys-Davies, who set the amendment in its proper context.
If your Lordships will forgive me, I shall set into some context what I have to say on this and other amendments. The Government will keep the points which have been raised and which will be raised very much in mind when, as we aim to do, we introduce a comprehensive Bill to cover aspects dealt with by the Warnock Inquiry. It is clear that these matters remain of considerable public interest even almost a year after the report was published. One only has to read the reports of the debates at the British Medical Association conference this week to realise that opinion is far from settled on these matters. In particular, a debate took place on non-commercial surrogacy arrangements, which this amendment affects. We are very much aware that this Bill is limited in its purpose and scope and I know from the speeches we heard at Second Reading that some noble Lords fee] frustrated about this. Indeed, all the comments we have heard about this Bill have been based on a desire to widen its scope rather than on any criticism about its drafting or what it seeks to do. I hope noble Lords will agree that in the wake of widespread public concern about the possible development of commercial surrogacy agencies in this country we were right to act quickly to try to prevent this. I am sure that had we attempted to be more ambitious, we would not only have had protracted debates on the more contentious issues, but, given the pressure of the government's legislative programme as a whole, we should have risked losing the Bill itself. Given the almost unanimous agreement that this Bill is needed, I am sure that that would have been most unfortunate. I hope noble Lords will bear that in mind today.
I am grateful to noble Lords for being so sparing in the number of amendments they have put down at Committee stage. I reiterate my assurance that the points to be made today will be taken fully into account when we introduce a Government Bill on the issues dealt with in the Warnock Report.
In regard to the amendment there is widespread revulsion that anyone should contract to hand over a child in advance of its being born or even conceived. I am sure we all agree that any such agreement should legally be void and unenforceable. I am advised that this is already the case, for Section 85(2) of the Children Act 1975 provides that: 926a person cannot surrender or transfer to another any parental right or duty he has as respects a child".The courts have already taken the same view where the arrangement is made for reward. In a case in 1978, in which a mother who had entered into a surrogacy arrangement for reward changed her mind during pregnancy and refused to hand over the child, the High Court rejected the commissioning father's application for custody. Mr. Justice Comyn said:The agreement between the parties I hold as being against public policy. None of them can rely upon it in any way or enforce the agreement in any way. I need only give one of many grounds for saying this, namely that this was a purported contract for the sale and purchase of a child".He also described it as a "pernicious" agreement. When the case went to the Court of Appeal it was accepted that there could be no possible question in the circumstances of the father having care or control of the child. In refusing him even access to the child the Court of Appeal paid tribute to what was acknowledged as a very careful and clear judgment from Mr. Justice Comyn and considered that, with one slight exception relating to access which he had allowed, the judge had directed himself in law perfectly correctly.
There can be no doubt that the law will not regard as binding or enforceable the agreement of a surrogate mother to hand over her child to another or others. This is wholly right and proper. I find it hard to accept, as I am sure do most noble Lords, that a woman should bear a child while at the same time she has no long-term commitment to the infant's welfare. This principle that the child's interests should be paramount is central to this Bill and is the guiding principle in all family law.
While I am completely in agreement with the intentions of the noble and learned Lord in moving this amendment, I respectfully suggest that it is at odds with his motives. Apart from duplicating the Children Act provisions, to which I have referred, it would have other serious consequences. A surrogacy arrangement could be much more than an agreement to hand over the child at birth. It could be a lengthy document, as I understand is the case with surrogacy contracts drawn by the major American agencies. It might cover many points relating to the welfare of the mother before and during pregnancy, the attention to be paid to the child's health, and the financial support to be given to the mother during pregnancy and confinement. We can easily envisage a circumstance where a close friend or sister of the infertile woman voluntarily agreed to bear a child for the childless couple. She might, on reliance of a promise of reimbursement, incur considerable expenses as a result of the pregnancy and birth or cease work during the period. The couple might then renege on their agreement. They might refuse to accept the child or to pay medical or other expenses. They might even take the baby and refuse to pay the expenses.
We ought to consider this question: do we want to deny a surrogate mother all legal redress, because that is what the amendment does? I ask noble Lords to consider that question very carefully. It may not be in the child's best interests if agreed maintenance costs are withheld at some stage during the pregnancy. As I have said, I agree with the principles of the noble and learned Lord, but the law is clear on this point under the Children Act and I hope that the Committee 927 will not accept the noble and learned Lord's amendment.
§ Lord Denning
I am grateful to all noble Lords who have supported me. I do not wish to imperil the passage of this Bill through either House, and, therefore, I propose not to press my amendment today. Speaking not as a legislator, but as an ex-judge, extra judicially it is my opinion that in our law at the moment all these surrogacy agreements are void and unenforceable whether for payment or not. That is extra-judicial. It is not legislative. That may wait for a later decision. In the circumstances, I shall not press the amendment. I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Lord Denning moved Amendment No. 2:
Page 2, line 20, at end insert—
("( ) A child born to a surrogate mother in pursuance of a surrogacy agreement shall for all purposes be regarded in law as the child of that mother.").
§ The noble and learned Lord said: I am raising a lot of important points. This one is equally important. When you have a surrogacy agreement and when you have the baby born, who is the lawful parent? If it is in a case where another woman provides the egg to go into the body of this woman, is the woman who provided the egg to say that she is the mother when the carrying mother has had the baby since the very moment of inception or implantation up to its birth? I rule out the mother who provides the egg and I would also rule out the man who provides the sperm. What has he done? He has provided the sperm but he has not gone through the essential act of putting it inside the woman's body. How can he be said to be the father? If anyone might be said to be, it might be the doctor who inserts it. That cannot be right. We cannot have him to be the father; neither would I have the man who masturbates and provides the sperm. I would not have him to be the father. Neither of them, in truth, is the lawful father at all.
§ The only lawful parent for a child so born, to my mind, is the carrying mother who has carried the baby from the moment the organism was there inside her body right through until the time when it was born. She is the carrying mother. I should like to make that as clear as can be. She is the one who has the duty to bring up the child, who has all the rights in regard to the child, and I would rule out all these donors altogether. I would let that mother who has carried the child all the way through be the mother of the child and have all the rights and obligations in regard to it. I am sorry that I did not give my noble friend longer notice. It takes time when one has other things to do. He can speak off the cuff as well as anybody, so let him do so. I can see the objections, or what objections will be raised, but I should like to make the law certain now in this Bill.
§ Baroness Phillips
I should like to support the noble and learned Lord, Lord Denning, as I would have supported him on his previous amendment. While perhaps I may not dare question my noble friend on the Benches opposite, as I was taught English only in primary schools, I constantly wonder about the good English of many of the Bills that are coming forward. 928 Parliamentary draftsmen seem to be strange creatures who can draw up very curious documents which we are told are good in law, so that one has to accept that. What I should like to ask the Minister is this. Is there any point in our debating these very important amendments at all? He has advanced the argument which, if I remember, I had to advance when I was on the Front Bench. It is a kind of moral blackmail: "If you want this Bill to go through, you must not amend the Bill here".
I would suggest to the noble Earl that some of the Acts of Parliament that we have and which are imperfect have been rushed through in just this way. I should like to know whether he can solemnly pledge that there will be subsequent legislation, before we reject the amendments which have been moved by the noble and learned Lord. We are dealing here with a very important principle, whichever way you look at it. It is horrifying to think that in the 20th century we have to debate a matter of buying and selling children. That is what it is. If we go back to the 19th century, we see that there were then all kinds of legislation. This goes even further, and to a Christian and indeed to a woman the whole of this discussion is horrifying. But I should like to know particularly if there is any point in debating these vital matters which the noble and learned Lord has raised, because he is doing us all a great service.
§ The Lord Bishop of Ripon
As I seek to express a view from the episcopal Benches on this amendment I am aware of the complexity of the issues with which we are dealing. As a Christian, I am profoundly convinced of the wrongness of surrogacy. I would find it difficult to go entirely with the argument that there can never be interference with the processes of divine creation. I would feel that there are occasions on which that divine process may be facilitated by human means. Nevertheless, in this particular case I feel that the separation of genetic parenthood from physiological motherhood is damaging to the integrity of the family and quite possibly damaging to the mother who has to carry the child.
However, I recognise that there are other views, and my view as a Christian and as a Bishop is not necessarily shared by others in our society. The members of the Warnock Committee were divided in their view on surrogacy, as were the members of the BMA who took part in the debate earlier this week. I therefore ignored in general the decision of the Government to bring forward legislation on the basis of what is generally agreed; and there is no doubt that we are all agreed upon the outlawing of commercial surrogacy arrangements. However, I want also to say that, whatever my own personal feelings about surrogacy, it would seem to me that we ought to leave open the option of surrogacy as something which can be entered into (if I may put it that way) by consenting adults.
In commenting upon this particular amendment, I should like to say that it seems to me to be valuable clarification. I echo what the noble Baroness has already said about our hopes that the Government will very quickly bring forward much wider legislation on the Warnock recommendations. Many of us would feel much happier about the lapse of some of these 929 amendments if we could receive such an assurance. But it seems to me that this particular amendment is a very valuable clarification at this time and therefore I am happy to support the noble and learned Lord, Lord Denning, in moving it.
§ Lord Craigmyle
I should like very much to support this amendment. It is sometimes represented that surrogacy is really a sophisticated form of adoption; and adoption is perfectly normal and legal, so why should surrogacy not be so? The noble Baroness was much nearer the truth when she referred to the unhappy practices in the 19th century, among them the practice of baby farming. To my mind surrogacy is a sophisticated version not of adoption but of baby farming and, since baby farming is illegal, so then should be surrogacy. If we have it stated that for all purposes of law the lawful child is the child of the mother who bears it, this will be very much clearer. If the mother then wishes to go through with the surrogacy arrangements that she may have made (I hope unofficially), she can go via the procedure of adoption. There is nothing to stop her from doing that; it would be a perfectly normal thing to do. But the child's benefit must come first. If the mother wishes to retain the child, then the child's benefit would seem to lie in allowing the mother to retain it. One perfectly natural reason is that the mother who bore it will be lactating and the sponsoring mother will not. These are some of the considerations which lead me to support the amendment of the noble and learned Lord.
§ Lord Houghton of Sowerby
I wish to ask a question on this point. The noble and learned Lord, Lord Denning, is usually so kind in his speeches to your Lordships as to explain from his vast knowledge and experience what his amendments mean. I am almost at his footstool on occasions when he is explaining the law. What are the consequences of the noble and learned Lord's amendment? I have a feeling that he is stepping outside the intentions and framework of the Bill. I may be wrong. On this occasion, for once—how rare it is—the noble Earl the Minister is going to be right on this Bill throughout the piece. He knows what the Bill is intended to do. He does not want it to do any more and he does not want it to do any less. He knows that he has a flank behind him on the other Benches opposite and behind me who would wish to push him. They are nudging him, to push him a little further than the scope of the Bill.
If the noble and learned Lord carries the day, it is like saying: "Away with everybody connected with this wretched business. The woman who bears the child is the mother and there is no nonsense about it, and all laws, doctrines, secular outlooks and religious beliefs shall be subordinated to that doctrine". That is what he is saying. I think that that is a point of view, but this Bill is dealing with commercial surrogacy. It is outlawing commercial transactions in connection with this procedure of transferring the process of carrying and birth to another person on behalf of someone else. This Bill does not outlaw that, unless there are commercial considerations involved in it.
930 The other part of profound importance is to be taken care of later on. I urge your Lordships not to be carried away on these matters by the headlines in the Daily Mail, the Mirror or any other of the popular newspapers, which try to sway public opinion and carry people into the kind of panic situation that we see so frequently in such matters. Let us be a little cautious for a change.
The noble and learned Lords who are Lords of Appeal sometimes reserve the right to deliver their judgments—judgment is reserved. Suppose I were to move now that the Committee should reserve judgment on the amendment of the noble and learned Lord. I think this would be justified in the circumstances, because not only is this amendment on the Marshalled List this morning for the first time but the noble and learned Lord has not told us where it would lead. As an ordinary layman, one can ask some questions about where it might lead. If the baby belongs to the mother who gives birth to it and is her property and no one else is able to claim it, does the law establish that parenthood so definitely that some other legal process has to be undertaken to change it?
Does it mean that the commissioning mother—to use the phrase of the noble and learned Lord—has to undertake adoption proceedings? Can we be told, if it is relevant? Quite honestly I think that these are matters which should be reserved for the grand inquisition into this matter, which is not suitable for this morning's proceedings, if I may say so. So I concur with the Minister, if he gets up and says that he is not in agreement with this.
§ Lord Denning
Perhaps I may answer the questions which have been asked. Clearly my noble friend has suffered nothing from not having noticed earlier—he has dealt with this very effectively—that the simple object of this clause is to do away with competition between the carrying mother and the commissioning mother. In law, the carrying mother, who has carried the baby for nine months, once she gives birth to the child should in law be the mother of the child. But the next step is easy. If this surrogacy agreement is to be implemented, let it be done by adoption, when the courts can see whether or not it is a proper case for the commissioning mother to bring up the child and for it to be adopted. That is the right way to deal with it and for the law always to say that the carrying mother is the mother subject to her power to institute adoption proceedings later.
The Earl of Caithness
Perhaps I may deal with some of the general points first, and particularly with the two points raised by the noble Baroness, Lady Phillips. She said that it was pointless to discuss the amendments of the noble and learned Lord. I tried to make it clear, in the preamble to my answer to the first amendment, that it certainly is not. This is very relevant. We certainly welcome the debate on the wider issues as well as the principle of this very limited Bill, and everything that is said today will be borne in mind for future legislation.
This takes me on to her second point. She wanted an assurance that future legislation would be brought in. I hope she has read what I said at Second Reading, and perhaps I might just recap. Obviously it is not for me 931 to dictate what will be in the Queen's Speech, nor do I know; but my right honourable friend the Prime Minister, earlier in the week of 14th June, had said that it was the Government's intention to introduce a comprehensive Bill on these matters as soon as possible.
My noble friend Lord Craigmyle said that surrogacy was baby farming. This brings me to a point on the earlier amendment that I meant to take up with the noble Viscount, Lord Buckmaster. If it was baby farming, well, then, Abraham was baby farming. The noble Viscount, Lord Buckmaster, seemed to indicate that surrogacy was a new invention of the permissive 20th century. It is nothing of the sort. It went on long before Abraham's day. The only thing that I should like the right reverend Prelate to help clear up for me, on which I am not 100 per cent. sure, is that Sarah was 99 when she had her child. I wonder whether in those days mothers were better than they are today. I am grateful to the noble and learned Lord for moving this amendment and giving us the opportunity to debate a matter which is obviously of great concern to us all.
The purpose of this amendment is to clarify the legal status of a child born following a surrogacy agreement. In most cases the surrogate mother's egg will be fertilised in pursuance of the surrogacy agreement. In that case the law is clear: that the surrogate mother is the mother of the child. It would, however, be possible to envisage circumstances where the commissioning parents donated both egg and sperm and where the embryo was transferred to the uterus of the surrogate mother. In this circumstance the law is unclear at present as to whether the commissioning or the surrogate mother is to be regarded as the legal mother.
The Warnock Committee recommended that:Legislation should provide that when a child is born to a woman following donation of another's egg the woman giving birth should, for all purposes, be regarded in law as the mother of that child".Its recommendation looks more widely than does this amendment to all cases where egg donation is involved, not just to those where a surrogacy arrangement is involved. Here again we step out of the context of this Bill, which is a very limited Bill to ban commercial agencies. We are stepping on to uncharted territory which is still the subject of much discussion. I think that this shows that the Committee would be wrong to rush into accepting an amendment of this kind, even one which would implement, at least partially, one of the Warnock Committee's recommendations. There are, as I pointed out, other issues to be borne in mind, including whether this provision should extend to all cases of egg donation. I am sure that it is better to wait and deal with this matter in a much more comprehensive Bill at a later stage.
§ Lord Denning
We are back to where we were on the other amendment. A lot of people would support the amendment. I want to make the law clear at the moment. That is why I limited it to the surrogacy. I still hold, and I would still express my opinion in law—you can disregard it if you like—that the carrying mother is in law the mother of the child. But I can understand the uncertainties that some people may have about it. In the circumstances I will not move the 932 amendment now nor proceed with it further. I only hope that when the Government come to consider the Warnock Report, they will bring this in as part of it. In the circumstances I do not propose to proceed further with the amendment, and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Negotiating surrogacy arrangements on a commercial basis, etc.]:
Lord Denning moved Amendment No. 3:
Page 2, line 26, leave out ("or")
§ The noble and learned Lord said: I am afraid I am causing all the trouble, but this involves an equally interesting point. If your Lordships look at Clause 2 as it stands, you will see that it deals with commercial surrogacy, where people go to an agency and arrange for a child to be born in this way for money. The clause then makes it a criminal offence for people to take part in a surrogacy arrangement on a commercial basis for money. An offence is committed by all those who do the arranging—the agencies and everything like that. But the clause exempts altogether the doctors who are the essential tools in doing the arranging. They can do it for a fee, if you please, and, maybe, a high fee. They are equally involved, or perhaps more involved, because they are the essential instruments for carrying this out on a commercial basis, and they do it for a fee. So, why on earth, should there not be an amendment to cover these professionals?
The Warnock Committee reported on page 47:
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".
§ I say that the doctors who arrange it are just as bad as the agencies, and that they ought to be equally liable for the criminal offence. The special object of this Bill is to deal with commercial surrogacies, and that is why I have put down this amendment to implement a recommendation of the Warnock Report. I hope that it will be accepted. I beg to move.
The Earl of Caithness
The noble and learned Lord is plainly keen to extend the scope of the Bill to give further deterrence to those who would wish to enter upon the dangerous practice of surrogacy. But I would refer again to the principle that the interests of the child should be our paramount consideration and I suggest that the amendment unwittingly runs counter to that important tenet.
Amendments Nos. 3 and 4-because Amendment No. 3 is the paving amendment to No. 4—would increase the provisions of the Bill beyond those who run commercial agencies to those who would give counselling advice to prospective commissioning couples.Amendment No. 4: Page 2, line 29, at end insert—("or(d) do any act intended to result in or facilitate the carrying of a child by a woman, knowing that the child is to be carried in pursuance of a surrogacy arrangement.")A couple who are childless, and who are considering surrogacy, may want to take legal advice to see whether they would be breaking the law. I am sure that 933 they would wish to consult a solicitor, if only because of the wide publicity that this Bill has received and which will contribute much to its effectiveness in discouraging this practice, if your Lordships grant it a speedy passage on to the statute book.
I can see the headlines in the paper. The noble and learned Lord is approached by a childless couple. He is so popular throughout the country, but because of his own amendment he is taken to court and found guilty and is subject to a fine of £2,000 and/or three months' imprisonment; or even worse, if my noble friend Lord Swinfen has his way in asking for £20,000, with six months' imprisonment. I do not think the country would be at all pleased to see the noble and learned Lord in that plight.
A solicitor would be very reluctant to outline the legal position, in case the couple eventually decided to embark upon a surrogacy arrangement, in which case he might be legally liable for the information he gave, even if he had no part in the drafting of the contract. Similarly, a counsellor would be loath to see a prospective couple, even if he was disinclined in principle to recommend surrogacy and had done his utmost to dissuade them. He, too, could be prosecuted if they did, in the end, commission a surrogate to bear a child.
However, the most serious consequence of these amendments is not that legal advice or experienced counselling would be denied a couple already suffering distress because of childlessness, but that the surrogate mother herself would be denied counselling and might enter into an arrangement which she would avoid if she were given good advice. Worse still, she would be denied many kinds of medical treatment, notably treatment to prevent a threatened miscarriage during her pregnancy, and I do not need to tell your Lordships of the importance for mother and child of adequate pre-natal care. It would be sad, indeed, if an innocent child were to suffer because of a legal agreement entered into by its mother. Once again, we are discussing widening the Bill, and as soon as we start to consider widening its very narrow scope we run into an immense amount of problems.
§ Lord Denning
I was quoting the Warnock Report which, in many respects, is still a very good one. I can well see the point which has been raised about protecting professional men and, in the circumstances, I shall not press this amendment, either. The point has been raised and it is for wiser heads than mine to settle it. I beg leave to withdraw the amendment.
§ Amendment by leave withdrawn.
§ [Amendment No. 4 not moved.]:
§ 1.15 p.m.
Lord Denning moved Amendment No. 5:
Page 2, line 33, leave out from ("offence") to end of line 39.
§ The noble and learned Lord said: This amendment deals with the position of the man and woman who take part in this commercial arrangement for money. Clause 2 exempts both of them from any criminal liability whatever and they go completely free. Is that right? The carrying mother, whoever she is, is doing it for money and is helping all the way through. It may be that the punishment ought to be very slight, but she is actually a participant in the whole of this criminal 934 situation of commercial surrogacy. One can have sympathy with her if she needs the money, and also sympathy with the man, but is it right that they should be excused altogether? Ought they not to be equally liable for the offence? The sentence may be very light, or even nothing. There may be just conditional discharge or something of that kind. But is it right that they should be exempted altogether by statute in this way? I beg to move.
§ Baroness Warnock
I have attempted to keep out of this debate, but I should just like to reiterate the arguments that we on the committee used to allow the surrogate herself to be exempt from any criminal charge. We did not like the idea of any child being born as a result of a criminal act, and I think that is what really lay behind our arguments. The other point is one that has been made before, that the urgent purpose of the Bill before your Lordships is to eliminate the agencies which I fear, unless this Bill goes through, will proliferate.
There are now waiting in America a largish number of agencies wishing, and anxious, to start on this side of the Atlantic and I think that there is a market for such agencies. I regard it as a matter of extreme urgency that to set up such agencies should he made a criminal offence. Since we know that it will be some time before all the detailed arrangements are discussed in both Houses, I think that we should, if possible, set up a criminal offence which picks on those very people whom we want to stop. Whatever may be anybody's view about surrogacy, this is a matter on which the body of the evidence is very strong—that people are not prepared to have in this country agencies which exploit both the misery of the infertile and the willingness of women to act as surrogates. It is very important that we should not widen the scope of this extremely narrow Bill in this way, but should allow it to go through as quickly as possible.
§ Lord Edmund-Davies
I support the noble Baroness in this matter. One cannot deal with this point at this stage without looking at page 3, line 5, of the Bill. We are dealing here with surrogate arrangements on a commercial basis and payments made therefor. As noble Lords will see, line 5 provides:In this subsection 'payment' does not include payment to or for the benefit of a surrogate mother or prospective surrogate mother.When the comprehensive Bill is introduced, it must embrace and demand consideration of the position which frequently occurs and which must move any person of ordinary human feeling. I refer to the family longing for a child but incapable for one reason or another of having a child for whom someone out of pure benevolence agrees to act in the role of a surrogate mother.
I am not arguing for or against. All I am saying is that this little Bill is far too small to comprehend that situation. Accordingly, one has in line 5 of the Bill the words:In this subsection 'payment' does not include payment to or for the benefit of a surrogate mother or prospective surrogate mother.I refer again to the case of the woman who, purely out of reasons of benevolence and pity for the barren couple, agrees to play the role of a surrogate mother. She puts herself inevitably to some expense during that 935 time. Would it be right to say, as is embodied in the next amendment, that the noble and learned Lord, Lord Denning, has in mind to move or had in mind to move, that to recompense the kindly-disposed surrogate mother for her expenses, let alone some financial recognition of a modest kind for the service she had rendered, is to be prohibited? I leave the answer to the question. The answer I have in mind is neither here nor there. It is not a question capable of being adequately dealt with in this little Bill. Accordingly, I for once am not supporting my noble and learned friend Lord Denning in this matter.
§ Lord Prys-Davies
I wish to adopt all the arguments advanced by the noble Baroness, Lady Warnock. The Minister has indicated to the Committee time and again that the object of the Bill is narrow and that it is primarily aimed at the commercial agencies and at the risks of exploitation of women and of commissioning parents by agencies. It appears to me that it would be very harsh if the mother and the commissioning parents were also punished for being the victims of exploitation.
§ Lord Houghton of Sowerby
I thought that the noble and learned Lord was providing by Amendment No. 5 for the carrying of Amendment No. 4. I thought he was clearing the decks to enable his Amendment No. 4 to be the governing clause in Clause 2. But on a closer look at it, it seems that, having failed by withdrawing Amendment No. 4, he still feels that he wants to remove the surrogate mother from the provisions of subsection (2). It is very confusing and difficult to follow as to what the combination of the amendments really amount to.
I wonder whether the noble and learned Lord could assist the court, so to speak, by telling us which of his amendments is relative to the purpose of the Bill, and then not move the others. We could then probably make more progress instead of just going on, if I may say so, for this session of the law school learning more about the law for consideration later. We are quite prepared to await the noble and learned Lord's instructions at a subsequent stage in our legal education which will come probably in two years' time when we are a little older and probably able more readily to absorb the complications of this matter.
I feel that we are ploughing on, if I may say so with respect, rather needlessly. Can we not go to the amendment of the noble Lord, Lord Swinfen, who really wants to increase the fines. We will understand that all right. The noble Lord is going to get at the money. We might or might not agree with what he proposes to do, but at least it is relevant to the Bill. Am I being impertinent to the noble and learned Lord?
§ Baroness Phillips
Before the noble and learned Lord, Lord Denning, replies, perhaps I may say to my noble friend that he is not being impertinent, but I think he is going a little outside the rules of courtesy. I say that because surely the noble and learned Lord, Lord Denning, is as entitled as anyone else to make a contribution to this Committee. The fact that he happens to have been a Law Lord is not relevant because he is not sitting in that capacity in this Session of our parliamentary arrangements. If we are going to 936 use this rule, no doctor should ever speak on a medical matter, and certainly no farmer should ever speak on an agricultural matter. A great number of noble Lords have been distinguished military personnel. Are they not to take part in the debates on defence? It is a nonsensical argument and I think that the noble and learned Lord, Lord Denning, has as much interest in the clarification of our Bills as any other noble Lord. I have heard the noble and learned Lord speak many times, and he is a master of English if I may say so. This is something we certainly need injected into our legislation.
§ The Lord Bishop of Ripon
In view of the remarks of the noble Baroness, perhaps I may venture a statement on the biblical sources which were put to me earlier by the noble Earl the Minister. When I refer to the complexity of the issues, among those complexities was the ambivalence of the biblical sources. It is indeed the case that one could argue that a form of surrogacy took place in the arrangements between Abraham and his slave, in view of the barrenness of Sarah.
I think it is worth pointing out that there are other features of Old Testament culture which, if we were to look to them as a guide, might lead us to some difficulty. For instance, polygamy was practised at that period. Most of us would accept that there has been a growth of the tradition, a formation of the culture, which has led us to our present understanding of the integrity of the family. It is the emphasis on that integrity that I feel to be so important.
I welcome the amendments put forward by the noble and learned Lord, Lord Denning. I do so in particular because in accepting this narrow Bill we are presumably allowing the possibility of the growth of practices which may in some regards negate other recommendations of the Warnock Report. I think for instance of the growth of non-commercial agencies. That in my mind underlines the strength of the argument for the urgency of the introduction of more comprehensive legislation.
The Earl of Caithness
Am I right in thinking that at the moment we are talking to Amendments Nos. 5 and 6?
The Earl of Caithness
I am grateful for the support for the Government's point of view from the noble Baroness, Lady Warnock, the noble Lord, Lord Prys-Davies, and the noble and learned Lord, Lord Edmund-Davies—and particularly from my point of view from the noble Lord, Lord Houghton of Sowerby. We have crossed swords before, and we shall doubtless do so again; but I think he is learning that we are not always wrong. It is a good thing. I hope he will come around fully to our point of view in future.
These amendments touch on a point raised by a number of noble Lords on Second Reading. They seek to make all forms of commercial surrogacy illegal. At present the Bill excludes the commissioning parents and the surrogate mother from the criminal sanctions of the Bill.
937 These amendments, by removing those exceptions, would extend the scope of the Bill to make all forms of commercial surrogacy illegal. However, we decided that the Bill should not deal with that wider issue, as we felt it was important to deal with the immediate problem about which everyone was agreed, the probem of commercial agents themselves. Thus, this limited Bill sets out only to prohibit what virtually everyone regards as abuses, and to prevent the commercially-motivated exploitation of people's personal difficulties.
I am sure noble Lords will agree that such abuse is of a different order from the passing of fees from commissioning parents to surrogate mothers, offensive though I know many find that practice to be. I believe we can safely leave that and other issues to the later, Warnock Bill.
As the noble and learned Lord, Lord Edmund-Davies, said, there needs to be much wider debate on these amendments than we have had; for example, on whether the prohibition should apply only to surrogacy for reward or should extend, as it would do under these amendments, to cases where the surrogate mother's only payment is to cover the bare expenses which she might have undertaken. We need to have wider discussion on these issues, and I hope that for that reason the noble and learned Lord will withdraw his amendment.
§ Lord Denning
I am quite persuaded by the arguments I have heard. I am only too pleased not to press this point and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Denning had given notice of his intention to move Amendments Nos. 6 to 12:
Page 3, leave out lines 5 to 7.
Page 3, line 19, at the beginning insert ("a body of persons or").
Page 3, line 24, leave out from ("then") to end of line 31 and insert ("whether or not the body at any time receives any payment in respect of that activity,").
Page 3, leave out lines 33 to 39.
Page 4, leave lines 4 and 5.
Page 4, line 6, leave out from ("arrangements") to ("in") in line 8 and insert ("which are").
Page 4, leave out lines 14 to 17.
§ The noble and learned Lord said: I believe that I can deal with the rest of my amendments in one sentence or two. These amendments were designed to give effect to the proposal in the Warnock Report that such legislation should be wide enough to include both profit and non-profit making organisations. That is much too debatable a question to involve us in discussion at this stage and so I propose not to move any of the remaining amendments in my name.
§ [Amendments Nos. 6 to 12 not moved.]
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord Craigmyle
Before we wave a cheerful farewell to Clause 2 which, after all, is the main clause of the Bill, I believe it would be right to say a few more words about commercial and non-commercial agencies. I 938 accept very readily the point put so clearly and strongly by the noble Baroness, Lady Warnock, that there are commercial organisations waiting in the wings to come onto the all-too-permissive stage of the United Kingdom to do their obscene act. But there are already in existence so-called non-commercial—I should be inclined to call them pseudo-charitable—organisations which are all too willing to take up that act.
If we allow them to go ahead while addressing only the obviously commercial agencies, I fear that we may later regret doing so. At a later stage, when the main Bill which we are promised comes before us, those of us who try to raise the question of non-commercial agencies will be told, "But we have dealt with agencies already. You should have objected at the time". I see my noble friend shaking his head. I hope that he will bear his head-shake in mind if he has to deal with the main Bill when it comes before us.
I have not been tremendously impressed by the argument that we dare not amend this Bill in case we lose it. My noble friends on the Front Bench and their honourable and right honourable colleagues in another place are no mean parliamentarians. We have in the course of this Session dealt with, and are still dealing with, highly contentious measures; contentious in the ordinary sense of divisions along party lines. We have also seen the Government push one Bill through Parliament probably, though not certainly, against the majority opinion in another place, and they are pushing it through this House, too. We have seen the Government defeat another Bill which had overwhelming support in another place—all this to suit their own parliamentary convenience. Are we really to believe that the Government are now so incompetent that they cannot get a few Lords amendments to a Bill such as this through another place?
§ Lord Swinfen
I should like to support very much the remarks of my noble friend Lord Craigmyle. I also feel that the Government, if they really wished, could get this Bill—it is called a small Bill, but is in fact quite a large stepping stone in the right direction—through the other place with amendments. They have in other legislation been extremely courageous in tackling problems which have gradually been getting worse over the years because various Governments have been too frightened to deal with them. Why on earth do the Government not have the same courage to deal with this matter? It is absolutely essential that the Government either bring forward another Bill themselves very quickly, or, if a private Member of either House brings forward a Bill, give that individual every possible assistance to get that legislation onto the statute book. Debates on the various amendments to Clause 2 have shown that a great deal still needs to be done. I must apologise to the Committee if what I have said sounded rather like a Second Reading speech, particularly since I had a go at Second Reading.
§ Lord Houghton of Sowerby
I have every sympathy with the desire of the noble Lord that what has to be done shall be done without undue delay. This is a very important matter and there is a great deal of legitimate public interest, quite apart from the blown-up emotions that can be created on a matter of this kind. 939 But surely the experience of Private Members' Bills in recent days has exposed the hazards and risks of that procedure in dealing with important matters of this kind. Indeed, I am coming to the conclusion that, with the best will in the world, the Private Member's Bill procedure is unsuitable for dealing with a number of the matters with which Private Members' Bills attempt to deal.
One of two solutions is indicated. First, there should be some clear understanding as to what is and what is not a suitable subject for the Private Member's Bill procedure. Secondly, there is a course which I favoured when I was in a position to influence matters—that any Private Member's Bill on a subject of conspicuous public interest or concern should never fail through lack of time and thereby bring the parliamentary process into disrepute.
The public do not understand why it is that a Bill can occupy a House of Parliament—at any rate, the other place—for many hours and days and yet be talked out at the end of it all. Members of the public wonder what sensible parliamentary process it is that does that. Television may let the public into the secrets of our parliamentary life, but still they will think that we are all half-crazy and it is about time that parliamentary procedures were changed drastically so as to cope with business under modern conditions.
I ask forgiveness for giving this little homily about Private Members' Bills, but we saw something of this kind of situation yesterday and what a mess we got into then. We are not out of it yet and we have to finish that business next Wednesday. All of this arises because the Private Member's Bill procedure entrusts an important Bill into non-Government hands but requires those involved to work hand in glove with the Government. The consequences of that procedure can only be as we witnessed them to be yesterday. I utter this caution, and at the same time I am sure the Government want to get ahead with a matter of this importance. We can only await the outcome. After all, we take a little time to digest reports of the complexity and delicacy of the Warnock Report. Personally I cannot thank the noble Baroness, Lady Warnock, too much for undertaking this difficult, and in some respects, quite distasteful task. We owe a tremendous amount to people who devote themselves in the public interest to matters of this kind. We must treat their reports with respect and arrive at well-considered solutions. Their own wisdom may not be enough in the end. Such complex and controversial matters require the clash of opinion to arrive at the right solution. I hope we shall get there, but not through the Private Member's Bill procedure.
§ Viscount Brentford
I hope that the Government will bring forward a new Bill as soon as possible. We have been considering this admirable report for nearly a year, and that to me seems to be a reasonable time. I hope that the Government will not wait until public opinion veers too strongly one way or the other, because I am sure that there are strongly held feelings on all sides and also entrenched interests relating to the matters that we have been discussing on Clause 2. I 940 hope that the Government will bring forward a Bill that is right as soon as they possibly can.
The Earl of Caithness
I am grateful to all noble Lords who have taken part in this clause stand part debate. I remind the Committee that this Bill has the objective of prohibiting only commercial agencies. It does not bite on non-commercial agencies which do not take fees. Before my noble friends Lord Swinfen and Lord Craigmyle get too depressed, I refer them to Clause 2(5) and ask them to read that clause very carefully. The effect of that provision is that if any agency fixes up a surrogacy and at any subsequent time receives any money from the surrogate or the commissioning parents, or even anyone connected with them, it commits an offence unless it can prove that the payment had nothing to do with the arrangement made. This prevents a body from seeking donations instead of charging fees for what it does. I think that that will deter a lot of people. I realise that the majority of the Warnock Committee recommended—
The Earl of Caithness
As I understand the position, if it can be proved that the legacy was as a result of a surrogacy agreement then there is trouble; but for whom I am not quite sure! Perhaps I should look into that.
I realise that the majority of the Warnock Committee recommended that both commercial and non-commercial agencies should be prohibited by law. However, it is clear from the response to the report and from the minority report signed by two of its members that there is not the same unanimity about banning non-commercial agencies as there is about prohibiting commercial agencies. Indeed, I refer again to the BMA conference earlier this week which voted to reject, against advice, the Warnock recommendation. It was rejected by 193 votes to 182 votes. The doctors themselves are now split down the middle. It is an extremely difficult area. As my noble friend Lord Swinfen said, there is still a great deal to be done. Certainly there is; but there is still a great deal to be discussed and a great many minds are putting their thoughts towards trying to form legislation that will not divide the country into two and which, when enacted, will not be impossible to work.
We have taken a small step forward and I hope that noble Lords will ensure the Bill's speedy passage on to the statute book; and I look forward to the wider debate on the Warnock Report.
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4 [Offences]:
§ 1.45 p.m.
Lord Swinfen moved Amendment No. 13:
Page 5, line 9, leave out ("level 5 on the standard scale") and insert ("£20,000").
The noble Lord said: With the leave of the Committee, I should like also to speak to Amendment No. 14 because the two amendments are tied together.
Amendment No. 14: Page 5, line 10, leave out ("3") and insert ("6").
§ As this is only the Committee stage of the Bill, I have tabled these as probing amendments and do not intend to press them. However, I reserve the right to come back at a later stage of the Bill if I am not satisfied with the Government's answer. I feel that we still have ample time, perhaps in another place, to deal with amendments, even bearing in mind that Parliament normally works for only eight months of the year. I am sure that if any other organisation worked for only eight months of the year its shareholders would want to know why, and I sometimes wonder why our shareholders do not wonder why.
§ The question of amending the term of imprisonment from three to six months can easily be dealt with. I do not think that three months is long enough and that the period should be six months. A more complicated issue is the fine. Level 5 gives a maximum penalty of £2,000. I shall not go through all the press reports which I have in my hand because time is moving on and I do not want to weary your Lordships. However, a report in the Daily Telegraph on 5th January 1985 suggests that the agency in the Baby Cotton case was paid about £14,000, of which less than half was paid to Mrs. Cotton. A fine of£2,000 added to that would be a reasonable increase, and is possibly not too much.
This country very often follows the United States and I have here a report from the magazine Time on 10th September 1984. I shall quote a part of it:
For their part, Aaron and Mandy"—
that is, the commissioning parents—
have agreed to pay Valerie"—
that is, the surrogate mother—
10,000 dollars to be kept in an escrow account until the child is in their legal custody. In addition, they have paid an agency fee of 7,500 dollars and are responsible for up to 4,000 dollars in doctors' fees, lab tests, legal costs, maternity clothes and other expenses.
§ If my arithmetic is correct, that totals 21,500 dollars, and that is not very far away from £21,500, depending on the rate of exchange. Add £2,000 to that amount and it is not a very large increase in the cost of the surrogacy arrangement. I am assuming that some arrangement will be concluded on who pays the fine if a commercial agreement is made. That would not surprise me.
§ I know that in normal circumstances Justices of the Peace, on summary conviction, can impose a fine of only £2,000. But not very long ago, in 1982, under the Local Government (Miscellaneous Provisions) Act we agreed in Section 22 that on summary conviction there should be a fine of £ 10,000. That was in relation to sex shops and sex establishments. In the Video Recordings Act, which became law at the end of last Session, the fine on summary conviction is one not exceeding £20,000; and that is where I obtained the figure for my amendment. There is one other example. In the Customs and Excise Management Act 1979 the penalty that can be made on summary conviction in a magistrates' court is up to three times the value of the goods recovered in cases of smuggling. I have sat on a Bench on cases where goods have been recovered in excess of £16,000. That meant that the magistrates were entitled to impose a fine in excess of £48,000 on summary conviction. I suspect that goods to the value 942 of £16,000 or thereabouts is not the lowest value to have been before Justices of the Peace in the past. Any idea that they are not responsible enough to handle fines of that level is totally ruled out. I beg to move.
§ Lord Prys-Davies
I agree with the noble Lord. The penalty provided in the Bill is too lenient. It does not reflect the gravity of the offence. It is not likely to hurt the defendant financially, especially as this is an offence where the offender has profited by its commission. It will not help to make it a really effective penalty.
It may be said that there is the stigma of a criminal conviction. That is probably the main usefulness of the offence. But the offender to whom the Bill is addressed will not too seriously be deterred by that stigma. If the penalty is to be effective, I agree that the offence must be buttressed by a penalty calculated to prevent the offence because it will hurt the offender.
§ Lord Denning
I, too, support the amendment. I only hope that passing the amendment will not imperil the Bill's getting through both Houses in time.
§ Viscount Brentford
I support the amendment for the reasons stated by my noble friend Lord Swinfen. The only problem I see is that he will need to make a diary note for 10 years' time to bring forward a Bill to update the figure unless at Third Reading the amendment is varied to allow a figure to be laid before your Lordships' House by order. I warmly support the amendment. It seems to me to bring realism into this matter.
The Earl of Caithness
May I deal briefly with the point that my noble friend Lord Swinfen raised on clause stand part? I was right in saying that the agency that accepts a legacy will be liable to prosecution unless it can be proved that it was not given as the result of a surrogacy arrangement.
I well recall the points made by my noble friend. He raised them at Second Reading. As I said we would, we have considered the amendments carefully together with the Home Office, which has a general oversight of the level of penalties provided for in legislation.
I can understand what I take to be the objectives of the amendments: to make sure that there is a realistic deterrent for those who might seek to profit by flouting the Bill. I do not think, however, that increasing the maximum fine tenfold to £20,000 and doubling the maximum period of imprisonment to six months would be appropriate to the offences which the Bill creates, and I should prefer to see the provisions stand as at present drafted. Your Lordships' Committee will want to consider how the courts will look at offenders and what penalties they would see fit to impose. In general, Level 5 on the standard scale is the maximum penalty which can be imposed by a magistrates' court, but there are exceptions in the case of sex shops, where the level of the fine reflects the profitability of the activity rather than the nature of the offence. Indeed, my noble friend gave another example.
I do not think that the Committee would be well advised significantly to increase the penalties provided in the Bill as drafted. We should not underestimate the seriousness of the offences created by Clause 2. The 943 approach taken in these amendments is somewhat draconian. It is very desirable that the penalties provided for comparable offences should be consistent, and those now in the Bill are identical to others for a very similar offence under Section 50 of the Adoption Act 1958, as now updated, of receiving a prohibited award or payment for making arrangements for the adoption of a child.
I understand very well the argument that, given the level of fees that we have seen paid in these cases, we must ensure that the penalties laid down should present a real deterrent. It would not do if it were possible to continue to run a commercial surrogacy agency and treat the likely penalty as merely an incidental expense of the business. What we have to remember, however, is that someone seeking to do that would face the possibility not only of a fine of £2,000 but of three months' imprisonment, too, and that not only for every time he negotiated a surrogacy arrangement but for every time that he offered to do so. I think that that is quite a major deterrent, and I beg to differ from the noble Lord, Lord Prys-Davies. The evidence that we have to date shows that it is quite an effective deterrent on the existing commercial agency.
But it does not rest there. If a person's repeated conduct shows that the penalties available are an insufficient deterrent in his case, there is a well-established procedure by which the Attorney-General may obtain a High Court injunction to restrain him. Breach of such an injunction is a contempt of court for which on every occasion he will risk committal to prison for up to two years and an unlimited fine. I can therefore say to my noble friend Lord Brentford that on that basis there will be no need for legislation in 10 years' time.
We have powerful weapons available to ensure that the laws Parliament makes are respected. I must ask your Lordships' Committee not to let the very natural indignation aroused by the cases about which we have read to induce us to lay down penalties out of line with those for comparable offences. I hope that my noble friend will withdraw his amendment.
§ Lord Coleraine
I wonder whether my noble friend will explain something of the nature of the evidence that satisfies him that the level of fines proposed is sufficient to deal with the commercial agency point.
§ Lord Coleraine
I believe that my noble friend said in answer to a point made by the noble Lord, Lord 944 Prys-Davies, that there was in his view ample evidence to satisfy him that the level of fines proposed is sufficient to deal with commercial agencies. I wonder whether he can add anything to explain the nature of the evidence that satisfies him on that point.
The Earl of Caithness
It is not only the level of fine: it is the imprisonment that is also a deterrent. As I understand it, the commercial agency existing at the moment has said that it will not operate because of the threat of those two things.
§ Lord Swinfen
I shall consider seriously what my noble friend said and read it carefully in Hansard when I receive it on Monday. He said that the level of fines in the Local Government (Miscellaneous Provisions) Act and in the Video Recordings Act reflected the profitability of the business. Parliament will have to make sure that the level of fines also reflects the profitability in commercial surrogacy. There is a danger that if we do not deal with this matter properly now it will get worse, grow and become a blot on the nation.
My noble friend also mentioned the powers of the Attorney-General. They come in only on repeated offences, which will show that the level of fines and other penalties is not sufficient because it will be commercially viable for agencies to take such fines into account.
I feel that my noble friend's arguments do not really wash. However, as I said at the beginning, this is a probing amendment, I shall take it away and consider it.
The Earl of Caithness
I am grateful to my noble friend for giving way. If he takes the logic of his argument further—and I hope he will consider this—it may be that that particular person is going to break the law regardless of the level of fine or the term of imprisonment, and that is when the Attorney-General's powers can be used.
§ Lord Swinfen
I realise that, but part of the law, and the penalties fixed by law, are a deterrent, and we have to make certain that the penalty is sufficiently large to act as a deterrent. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14 not moved.]
§ Clause 4 agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported without amendment: Report received.
§ House adjourned at one minute past two o'clock.