§ 8.57 p.m.
The Earl of Halsbury
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 Halsbury.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AIREDALE in the Chair.]161
§ Clause 1 [Surrogacy arrangements to be void]:
Lord Denning moved Amendment No. 1:
Page 1, line 5, leave out from second ("is") to ("whether") in line 6 and insert ("unlawful").
§ The noble and learned Lord said: As the noble and learned Lord, Lord Simon of Glaisdale, is not able to be here, he has asked me to move this amendment on his behalf. It is quite an important point in law as to the status of these surrogacy arrangements. Are they merely void and unenforceable, or are they unlawful?
§ As the principles underlying this amendment run throughout our discussions, perhaps I may illustrate them by telling the Committee what a surrogacy arrangement is and what a surrogate mother is. They were defined in the Surrogacy Arrangements Act 1985. The present Bill amends that Act and I suggest that it is right in law that the phrases and the meanings of the words in the Act itself should be the same as in our amending provision. So the meaning of surrogacy arrangements and surrogate mother must be carried into the amending Bill.
§ The definitions are reasonably clear in the Act that was passed on the previous occasion; but I shall make the matter clearer by telling the Committee about the facts of two cases that have come before the courts showing what is a surrogacy arrangement and what is a surrogate mother. I shall first take the case of 1978. It is not reported in any of the ordinary law reports because it was only reported in 1985, in the Family Law Reports. That case concerned a man who had married a lady who was a good deal older than himself. They wanted a child but the wife would not or could not have one. They decided to contact a girl who would be artificially inseminated with the husband's semen.
§ They went along to Bow Street and found a prostitute there who acted as a go between. It was arranged that a girl of 19 should be artificially inseminated with the husband's semen in return for £3,000—with £500 going to the agency.
The girl went to a clinic. I suppose that the husband went there at some other time and his semen was, by masturbation, drawn off from him. The doctors then artificially inseminated the woman, and after nine months she bore a child. She then decided that she wanted to keep that child. The husband said that it was his child and that an arrangement had been made—clearly, there was a surrogacy arrangement. The husband said that he wanted the child and access to it. The courts refused to agree. The judge, Mr. Justice Comyn, stated quite clearly that in his view such was illegal. He stated:
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".
The courts did not allow the man any access to the child, and the Court of Appeal upheld that decision. That is an example of a surrogacy arrangement on a commercial basis, as plain as can be. The courts held that the surrogate mother was the mother of the child and that the father could have no access to that child at all.
§ That is one case where the mother changed her mind. The other case is the Baby Cotton case, concerning an American couple. The woman could 162 not have a baby, and so through some agency the couple came over to England and made contact with a Mrs. Cotton, who agreed to be inseminated with the husband's semen in return for £6,000. She bore the child and the husband wanted it. Who was to have it? The mother, Mrs. Cotton, agreed—and the court allowed to let the baby go to the husband in the special circumstances of that case. I suppose that Mrs. Cotton retained her £6,000. Those are two instances of surrogacy arrangements and of surrogate mothers coming before the courts.
As I have told your Lordships, the Court of Appeal has held that such an arrangement is unlawful and void. I may go on to state that that kind of situation was considered by the Warnock Committee, which reported clearly at page 43, in paragraph 8.5, of its report that:
There is little doubt that the Courts would treat most, if not all, surrogacy agreements as contrary to public policy and therefore unenforceable. Where one party broke the agreement the other party could not expect to invoke the court's assistance. Thus, if the carrying mother changed her mind and decided she wished to keep the child it is most unlikely that the court would order her".
The committee stated on page 47, in paragraph 8.19, that:
We recommend that it be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the courts".
When the previous Bill was before Parliament and before your Lordships' House, the matter was left open. There is a provision in Section 1(6) 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".
§ In this new Bill, we are suggesting that the matter be made certain—not that it be left unknown. We are suggesting that it be made clear in accordance with the decision of the courts and with the recommendations of the Warnock Committee that such agreements are void and unenforceable—and that they are, at the suggestion of my noble and learned friend Lord Simon of Glaisdale, unlawful.
§ What is the difference between a contract being void and unenforceable and the addition of it being unlawful? I shall give your Lordships some illustrations of one side and the other of the line, in old cases. I shall deal first with a contract that is void and unenforceable and that is unlawful.
§ There is an old case of more than 100 years ago concerning some people who owned an elaborate carriage who let it out to a prostitute so that she could carry on her trade. It was hired out to her. She was ready to pay the money to the hirers. She paid £52 and then they called it off. That contract was held to be unlawful and contrary to public policy and public morals, and she was not entitled to recover her money.
§ The converse case where it was just void and unenforceable was that of a marriage broker's contract—that is, Herman and Childsworth in 1905. A woman who was anxious to find a husband went to a marriage bureau and in order to find a gentleman she was ready to pay £52 to the broker and another sum after she got her husband. It did not go through. The contract was held to be void and unenforceable, but not unlawful. She got back her money. If it had been unlawful she would not have got back her money.163
That is what my noble and learned friend Lord Simon of Glaisdale wants me to suggest in a case of this kind. If there is an arrangement whereby £6,000 is to be paid by the commissioning mother to the surrogate mother and the surrogate mother changed her mind, can the woman who paid the money get it back? I hope that Members of the Committee will say, "No". That is the difference between void and unenforceable and unlawful. If it is only void and unenforceable, and not unlawful, she can get the money back. That is the distinction which my noble and learned friend Lord Simon of Glaisdale wants to suggest; that it is not only void and unenforceable but also unlawful. That is the distinct recommendation of the Warnock Report, which I read to your Lordships, that:
It be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the courts".
That is what I suggest is the right way of amending the first clause. I beg to move.
The Earl of Halsbury
These very fine distinctions between terms of art such as "void and unenforceable" on the one hand and "unlawful" on the other, are a little beyond my range of understanding. For my own part, I am happy to accept this amendment because of the character of the sponsors: my noble and learned friend Lord Denning who spoke to it and my noble and learned friend Lord Simon of Glaisdale who conceived it. However, if the Government have any doubts and my noble and learned friend feels moved not to press the amendment accordingly, I shall be content that he should not do so and leave the matter in his hands.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington)
Far be it for me to argue with someone of the eminence of the noble and learned Lord, Lord Denning; but my legal advisers tell me that on a technical basis it is not really necessary for there to be legislation on this point as it seems fairly clear that in most circumstances a court would hold a surrogacy 164 arrangement to be void, if not unlawful. This is particularly the case as I am advised that agreements to hand over a child are already unenforceable; for example, by virtue of Section 85(2) of the Children Act 1975.
The effect of making this amendment would, for example, be to remove any possibility that either the commissioning parents or the surrogate mother could recover sums due to them under a contract. It is possible that to make it clear beyond a doubt that a surrogate mother cannot be made to hand over a child in pursuance of a surrogacy arrangement, a situation might be created where there were unintended consequences which might be unfortunate.
In view of the Government's neutral stance on the Bill of the noble Earl, Lord Halsbury, my comments are directed solely at setting the scene on this amendment from my department's angle.
§ Lord Ennals
At this stage I want to be extremely brief and say only that the noble and learned Lord, Lord Denning, in moving this amendment, drew upon a recommendation in the report of the committee presided over by the noble Baroness, Lady Warnock. If we were to do that we could go right the way through, and what we really wait for is the Government's considered approach to this. It would be quite absurd to take a decision, one way or the other—on this amendment or the wording as it stands at present—at this time of night without having had that consideration. It does not make much difference to me whether we accept one form or the other. At a later stage I shall say why I think that it would be unwise to proceed either with the amendment or with the clause.
§ Lord Denning
I shall not press the amendment. In my view the clause as it stands is good enough. The amendment of my noble and learned friend Lord Simon would have been a useful addition but it is not necessary. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.165
§ 9.15 p.m.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord Ennals
May I say, firstly, in case I forget to do so later, that I am speaking purely for myself. I am not neutral about the Bill and I am not speaking for my party, but only for myself. To save the time of the Committee, since I and the noble Lord, Lord Winstanley, have proposed that Clause 1 should not stand part of the Bill, that Clause 3 should not stand part of the Bill and that Schedules 1 and 2 should not be schedules to the Bill, I hope that the Committee will permit me to deal with them all in only one speech rather than make the same speech four times. I hope—and no doubt other Members will agree with me—that this will be the only speech I shall make on this Bill.
In my speech during Second Reading on 11th March I said that I was not happy about Clause 1 and Schedule 2. Since then I have also realised that I am not happy about Schedule 3 or Clause 3. I said that they seemed to me to imply opposition to surrogacy under any circumstances. I want to say that since then I have re-read the report of the committee which was presided over by the noble Baroness, Lady Warnock, and the Expression of Dissent presented and published by Dr. Wendy Greengross and Dr. David Davies as their considered view. The noble Baroness, Lady Trumpington, in that same Second Reading debate, at col. 587, said:Not all members of Warnock Committee felt able to support its recommendations".As the noble Baroness, Lady Warnock, pointed out in her preface to the report, in this disagreement is reflected the range of views within society as a whole. There are those who view the area with complete distaste and would wish to see a total legislative ban on all forms of surrogacy; on the other hand, it is possible to disapprove of any organised surrogacy service, yet to look ambivalently on an informal arrangement made perhaps between members of the same family or between friends. I totally agree, and associate myself with the views expressed by the noble Baroness.
Thus, speaking for myself, I totally align myself with the position of the Government, except on neutrality. I honestly hope that this Bill will not pass through your Lordships' House because I believe that, except for the urgent need to bar commercial surrogacy agencies, as we have already done by a Bill quite properly put forward as a matter of urgency by the Government, we should now await the legislation that is to come. Perhaps I may just draw to the attention of the Committee a very few sentences in the Expression of Dissent:There are, we hold, rare occasions when surrogacy could be beneficial to couples as a last resort. On those occasions gynaecologists should not be denied the option of suggesting surrogacy to their patients".At this stage it is interesting to note that this is the view of the British Medical Association, who state:The 1985 Annual Representative Meeting—comprising 600 representatives from all over the country—provided the first opportunity for debate on commercial and other forms of surrogacy. The representatives passed the following resolution: 'That this Meeting agrees with the principle of surrogate births in selected cases 166 with careful controls'. An argument put forward during the debate at the Annual Representative Meeting was that very few babies are available for adoption and surrogacy might help some infertile women".I return to the Expression of Dissent:The practice of surrogacy could lead to serious problems, and we do not wish to deny these problems. Equally we regard it as of immense importance that people considering getting involved in surrogacy, in whatever way, should be fully aware of the complications that could ensue".It goes on:In our view the question of exploitation of the surrogate mother, or the treating of her as a means to other people's ends, is not as clear cut a moral issue as our colleagues assert …Whatever we as an Inquiry may recommend, the demand for surrogacy in one form or another will continue, and possibly even grow … Having considered the risks on both sides of a finely balanced argument we have come to the conclusion that it would be a mistake to close the door completely on surrogacy being offered as a treatment for childlessness … We believe that it would be inappropriate for steps to be taken to provide that all surrogacy agreements are illegal contracts … We do not believe that public opinion is yet fully formed on the question of surrogacy, which has burst into prominence only in the last year or so. Thus we think it is too early to take a final decision one way or the other … We simply ask that the door be left slightly ajar so that surrogacy can be more effectively assessed".That is precisely my view and where I stand. We are dealing with very difficult issues.
The noble and learned Lord, Lord Denning, during Second Reading and in moving his amendment a few moments ago, pointed out some very difficult circumstances. I think that those are precisely the sort of circumstances which we need to balance; but we also need to balance them against a possible development which we see from Mr. Steptoe and Dr. Robert Edwards may be a way forward, and that is, as I said in the Second Reading debate, an opportunity for mothers and fathers to produce babies which are the product only of the eggs of the mother and the sperm of the father. I believe therefore that we should not allow to go through Clause 1, Clause 3, Schedule 1 or Schedule 2, which in their various ways would close the door finally against surrogacy It would be a very unwise thing to do.
I hope that the Government will at some stage, in spite of their neutrality, give an indication of when they expect to come forward with their own Bill covering this whole issue. My view is absolutely clear. We should not deal with this complicated issue piecemeal. There are a whole range of issues and recommendations made by the Warnock Committee which this House, and this Committee, I believe, would want to consider carefully. If we pick on little bits we may find that if the Bill goes through some other private Member may come forward with another Warnock recommendation, and then another, and we shall find that we do not have a proper, fair and healthy debate ourselves, let alone a proper, fair and healthy assessment of the views of the public, which really must be taken into consideration.
I agree with those who say that at this stage public opinion has not formulated itself. A debate such as this is perhaps useful in helping people to formulate their views. I wish, with the support of the noble Lord, Lord Winstanley, to urge that these two clauses and two schedules should not stand part of the Bill.
I shall not detain the Committee for long at this late hour. Indeed, I resisted the temptation to respond to the speech of the noble and learned Lord, Lord Denning, on the earlier amendment. I believe, frankly, I shall return to this in a moment—that the noble and learned Lord, if I may say so with the greatest respect, was rather confused about precisely what surrogacy is. Like the noble Lord, Lord Ennals, I, too, from this Front Bench, speak for myself alone. Nevertheless, I entertain the hope that many of my noble friends would agree with me. I am sure that the noble Lord feels similarly.
In general, I take the view that the noble Lord, Lord Ennals, has taken. I would endorse and add my name to every word that he said. Let me return at once to the point that I made about the speech of the noble and learned Lord, Lord Denning, on the earlier amendment. It seemed to me that the first of the cases that he described—a very distressing case in which a prostitute, I understand, was induced to take part in artificial insemination with the sperm of a husband and later to donate the resulting child, if there was a child, to a couple—is not surrogacy. Surrogacy, as I understand it, is an arrangement whereby the ovum of an allegedly infertile woman is fertilised in vitro with the sperm of her husband and the fertilised ovum is then implanted in the uterus of a third party for gestation, so that in the end a child is born that genetically is the child of the donor of the ovum and of the sperm. That is surrogacy.
Artificial insemination of some other party and the subsequent abandonment or transfer of the baby is not surrogacy. This illustrates that it is a very puzzling and difficult area. My description of what I take surrogacy to be does not mean that I am a passionate enthusiast for surrogacy arrangements. I believe, however, like the noble Lord, Lord Ennals, that there are perhaps some cases—they may be few—in which this is possibly the procedure of choice and the best possible course for parents who are unable to have a child and who are desperately anxious to have one. It gives them an opportunity of having a child that genetically is their own. In a world so full of unwanted children, we should consider anything that can be done to increase the number of positively wanted children and should not reject it without a great deal of thought.
I understand that the Government's view with regard to the Bill, the amendments, and so on, is one of benevolent neutrality. I find that a little puzzling. My views were expressed fully in your Lordships' House when we debated the report of the committee under the noble Baroness, Lady Warnock. I expressed my views fully then on this whole subject. I shall not go over them again. However, at that time, and on a number of subsequent occasions, the Government spokesmen in your Lordships' House and in another place have said that they were broadly in agreement with the main thrust of the Warnock recommendations and that after proper consideration and consultation they would in due course introduce legislation to enact those recommendations.
That seems to me to be a view which is extremely sensible. For the Government to be neutral to a Bill 168 which pre-empts that course seems rather odd. This Bill does pre-empt it. As the noble Lord, Lord Ennals, said, it is dealing piecemeal with an extremely complex subject. If we are to deal with it piecemeal, surely we should deal with it piecemeal in the right order. The most important recommendation of the Warnock Committee was for a statutory body to examine this whole field carefully, to license those who are working in it, to exercise a continuing watch over what is going on and to report. That is surely the first thing to do. However, merely to legislate on one aspect of that complex report of the Warnock Committee seems to me to be unwise.
I do not take the view that surrogacy arrangements of one kind or another will necessarily figure prominently in the medical life of our society in the future, but I believe that this is a field in which advances are being made extremely rapidly, in which the work of Mr. Steptoe, Dr. Edwards and others is of immense importance and in which we should be unwise to impede such work unnecessarily at this stage. I also believe that while we have so many criminals in society, as indeed we do, we should not create new criminals out of people who are doing important work, intended to be helpful to society. I think that it is rather unwise to do that too hastily.
This Bill, and particularly the section to which we are referring, makes criminal certain acts which at the moment are being performed with the best possible motive so far as society is concerned. I do not want to be misunderstood. I do not think we are here to say "Yes, we think that surrogacy arrangements are admirable and that they should go ahead without limitation". They should be looked at extremely carefully. There are consequences regarding the status of the child that is born which are of immense importance. I would wholly agree with the noble and learned Lord that those must be resolved. But I do not think that one resolves them by making all surrogacy arrangements illegal—full stop—whether they are within the family, or however they are done.
I agree with the noble Lord, Lord Ennals, that it seems extremely unwise to proceed piecemeal in this legislation. This is a matter upon which the Government in both Houses of Parliament have stated repeatedly that they intend in the end that the recommendations of the Warnock Committee should be enacted and should arrive on the statute book in some form via legislation which the Government themselves will bring forward when they have had the opportunity to consult properly and to deal with all the matters concerned. To deal with the matter in this piecemeal way will be a grave mistake.
It is for that reason that I am glad to support the noble Lord, Lord Ennals, in his proposal and in his view that those clauses should not stand part of this Bill.
§ Lord Denning
I hope that I understand surrogacy. It is not only when the ovum of another woman is placed into the mother's womb. It also applies in the case, which I put, of a man's semen being placed there. But 169 the two things are completely combined in the definition in the present Bill:'Surrogate mother' means a woman who carries a child in pursuance of an arrangement—
I should like to say this about the point made by my noble friend Lord Ennals. Surrogacy on a commercial basis is what is prohibited by this statute. Surrogacy such as has been suggested, with the sister coming in to help, not on a commercial basis, is not prohibited by the Bill at all. All this clause says is that it is void and unenforceable. Therefore, if the arrangement falls down and the carrying mother wants to keep her child, she can without being sued by anyone else, or vice versa. All I say is that the arrangements are only prohibited on a commercial basis. This clause says that if you make any agreement about it, that is void and unenforceable, but that is all.
- (a) made before she began to carry the child, and
- (b) made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised (so far as practicable) by, another person or other persons".
§ 9.30 p.m.
§ Under Clause 2, it is quite plain that the surrogate mother must be the mother who carries the baby the whole of the nine months. She certainly is the mother. Can anyone deny that? The courts have held that the unknown father does not come into that. I believe that Clauses 1 and 2 are very desirable and ought to be approved by the Committee.
§ Lord Coleraine
Perhaps I may add a few words to what the noble and learned Lord has said about the meaning of the word "surrogacy". The noble and learned Lord is of course correct. The meaning which he adduces is that used in the Warnock Report. Paragraph 8.1 of the report states:Surrogacy can take a number of forms. The commissioning mother may be the genetic mother, in that she provides the egg, or she may make no contribution to the establishment of the pregnancy. The genetic father may be the husband of the commissioning mother, or of the carrying mother; or he may be an anonymous donor. There are thus many possible combinations of persons who are relevant to the child's conception, birth and early environment.
§ Baroness Trumpington
In reply to both the noble Lords, Lord Ennals and Lord Winstanley, who more or less challenged me as to when the Government will bring in a Bill covering the whole of the Warnock Report, my answer is that the Government are fully aware of the strongly-held views on many of the issues dealt with in the Warnock Report and the Government intend to introduce legislation on those matters as soon as practicable. I am sorry that I cannot be more precise, but this debate is helpful and all the points made in it will certainly be taken into account in considering future legislation on the issues which are raised during the progress of this Bill.
The Earl of Halsbury
On the Question whether Clause 1 shall stand part of the Bill, perhaps I may rehearse the line which I took on the Second Reading of the 1985 Act, a year ago. I was extremely anxious to place an embargo on surrogate motherhood to prevent the building up of vested interests, whether 170 professional or commercial, in advance of the Government making up their mind to introduce a Bill of their own and the terms in which they would recommend it. This was fully in line with the majority report of the Warnock Committee and was supported by many Members of your Lordships' House who wanted to stiffen up the terms of the Government Bill when it came before your Lordships' House.
The Government, through the usual channels, asked a number of people who wanted to stiffen up the Bill not to amend it at that particular point in time for fear of losing the Bill altogether in view of its late appearance in your Lordships' House very much towards the end of the Session. I was a party to persuading a number of noble Lords to withdraw their amendments on the understanding that I would resurrect them in a Private Bill to be introduced. I referred to all this on the Second Reading of this Bill.
One of the points which I made on those occasions was that in some respects the Warnock Committee was unanimous, but in other respects some of its decisions were majority decisions. You sometimes have to stay with a majority decision. When I was given the responsibility for deciding how to decimalise the currency, the committee working under my chairmanship, by a majority, came to a decision that we should keep the pound. That decision was referred to the Treasury, who again by a majority decision enforced it. It went to a Cabinet sub-committee, who also by a majority supported it, and the whole Cabinet, again by a majority, supported it. There were four stages of decision-making, in each case by a majority. You may have to live with majority decisions. We have to for most of the time.
I think it would be helpful to the Government—I said this earlier but I repeat it now—to know what the majority opinion of this Committee is. Does it divide on the same lines as the Warnock Committee, or does it lie on opposed lines? This information is something we badly need to have. In so far as the noble Lord, Lord Ennals, has thrown down a challenge to this Bill, I accept that challenge. He can pick up the gauntlet, if he wishes, by expressing himself "Not-Content" at a time when I express myself "Content".
§ Lord Vaux of Harrowden
I may be thought old-fashioned, but I happen to be a Roman Catholic, and our Lord God instituted the sacrament of marriage for the procreation of children. Nobody has a right to have children; it is the Almighty who fixes that. It is not for us—if I may use a crude word—to muck about with it, and I do not think that this surrogacy business should carry on at all. I think I am right, and that we should not do that. I think that probably the right reverend Prelate agrees with me.
Before the noble Lord, Lord Ennals, decides what course he is going to take with regard to this clause, I would say in response to the noble Earl, Lord Halsbury, that I do not think that the Government would get much helpful evidence as to the balance of opinion in society through a Division on this particular clause in a Committee with this number of people at this hour of night. If my noble friend presses a Division, whatever the result, I do not think 171 that the Government would be wise to regard that as giving any firm indication as to whether or not opinion in the Committee reflects the division of opinion in the Warnock Committee. I do not think that it possibly could do so.
§ Lord Ennals
I shall be brief because the noble Lord has just said half of what I was going to say. There are few of us here. Most of us are unwhipped, and some of us are unrepresentative. We speak for ourselves. I do not believe that at this hour of night, with this number of Members, we would learn anything about the views of the Chamber.
Secondly, clearly the passing of this Bill, or any single clause in it, would pre-empt the Government's position when they come to present the major legislation. I hope that the Government realise this. I do not expect that the noble Baroness will be able to give me the date when the legislation will come, but she and her right honourable friend must accept that if this Bill is passed, whether it includes Clause 1 or the rest, we shall have on the statute book something that inevitably affects what the Government are going to do with their own legislation.
Another little bit has been resolved which might seriously affect the broader vision that one hopes the Government will take. I hope that the moment will arrive when the Government will come off the hook or get away from their neutrality. Otherwise we shall have debates like this through the Report stage and Third Reading and we might even finish with a Bill that is very, very unrepresentative. I shall not suggest that we divide tonight. I shall not oppose the Question in the sure knowledge that the Government will eventually take a position.
§ Clause 1 agreed to.
§ Lord Skelmersdale
My Lords, before the Committee moves to Clause 2, I think it would be right to make a short business statement, which is as follows:
It has been agreed through the usual channels that the Housing (Multiple Occupation) Bill in the name of my noble friend Lady Vickers should not be given a Second Reading this evening.
§ Clause 3 [Status of Child]:
The Earl of Cork and Orrery moved Amendment No. 2:
Page 1, line 7, leave out ("surrogate mother") and insert ("woman").
§ The noble Earl said: I have nothing particular to say about the substance of the Bill and I do not wish to express any views about what has been said by the noble Lord, Lord Ennals, or anyone else so far. My concern with the Bill is almost, but not quite, entirely semantic. I am reminded of an occasion many years ago, and it may be that the only other noble Lord present in the Committee who will recollect it is my noble friend Lord Craigmyle. He, like me, took part in the Second Reading debate on the British Standard Time Bill, which I think was in 1970 or thereabouts.
§ In that debate, our noble friend Lord Conesford, that doughty warrior on behalf of purity in the English 172 language, criticised a particular section of the Bill by saying that it might have been drafted in a different way, more simply; it might have been drafted in the form that the winter shall be deemed to be the summer. There is a certain element of that in this Bill, strong enough at any rate to remind me of that far away occasion. It has to do with the definitions of "surrogacy", "surrogate mother" and so on.
§ I have put down a group of amendments, two here and two on the next page, Amendments Nos. 6 and 7, to do with this, and if I may I shall speak to the first two, which are really a single one. Amendments Nos. 2 and 4 are based on the simple idea that a child born to a woman is, to all intents and purposes, the child of that woman; or, put the other way round, the woman who has a child is, for all purposes in law, the mother of that child. I think that is true and that is what my amendment actually says. The Bill says, or at any rate implies, that the woman who has the baby is the mother of that child if she is a surrogate mother. This complication will become more acute in a minute if my noble friend Lord Coleraine will carry it a stage further and say that it is so; the woman is the mother of the child if she is a surrogate mother and also if she is the genetic mother of the child.
§ We are getting into pretty deep waters fairly early, and my noble friend Lady Trumpington gave a slight indication of how deep these waters may get in the Second Reading debate on this Bill by referring to surrogate pregnancies. This appears to me to be quite a long step nearer the idea of a surrogate baby.
§ However, at any rate we already have the idea that there are only two kinds of mother in this surrogacy arrangement, one of whom is the surrogate mother and the other is something which is not identified. We have had these two persons described in different ways. We have in fact—and this is on the Second Reading of this Bill alone—been told about the surrogate mother, the bearing mother, the social mother, the carrying mother and the genetic mother. The only character who does not appear anywhere in this Bill is the mother.
What about this unfortunate baby? Was he born by some process of osmosis or something that is the opposite of whatever that may be—of parthenogenesis? These are not idle frivolities, in my opinion. I ask that a simple statement should be put down and not be, if I may put it crudely, messed about with. Therefore I propose that Clause 2 shall be amended so that it reads:
A child born to a woman in pursuance of a surrogacy arrangement shall for all purposes in law be regarded as the child of that woman".
That is a simple, straightforward statement. I beg to, move.
§ 9.45 p.m.
§ Lord Denning
May I say that this adds nothing? We have the definition of "surrogate mother" in the Act which has already been passed. We do not want to use another word which some courts may say was different. The Bill states "born … in pursuance of a surrogacy arrangement". To know what a "surrogacy arrangement" is, one has to go back to the Act which is already in being. In a "surrogacy arrangement" a person would be a surrogate mother, so one has to have the definition of "surrogate mother" as already 173 defined in the Act which has passed through Parliament. It would confuse matters a great deal if the word "woman" were inserted instead of "surrogate mother". I hope that the Committee will not accept this amendment.
§ Baroness Trumpington
I feel I should point out to the Committeee that if any of the amendments put down in the name of my noble friend Lord Cork and Orrery were accepted they would have implications for the 1985 Act which would need amendment in a number of other provisions thus causing further legislation in this matter.
§ The Earl of Cork and Orrery
I am well aware of these points, both those made by the noble and learned Lord, Lord Denning, and also by my noble friend the Minister. The reason that I had not touched on them in advance of my remarks was that I thought that my amendment was so simple and so obvious that I could get away with that one, get past it and proceed to the more important matter. As these matters have been brought up now perhaps I may proceed and speak also to Amendments Nos. 6 and 7. I hope that will meet with the approval of the Committee. They are intended to meet the objection of the noble and learned Lord that definitions have been made of "surrogate mother" and "surrogacy arrangements" in the Act. This is true and the Act was based on the Warnock Report which I suspect, though I am not sure, took the word "surrogacy" and its definition from some American source.
The noble and learned Lord, Lord Denning, said in his earlier speech on the first amendment—I think he did, I do not wish to misquote him—that there was no contradiction between the legal definition of "surrogacy" and the ordinary logical dictionary definition. With the greatest diffidence and a great deal of respect I venture to doubt whether that is true. Whether the noble and learned Lord said that, the dictionary definition is clear and simple. A "surrogate" is a substitute. There is no argument about that. If a surrogate is a substitute, how is the word used in the terms of the Bill and in the Act?
In bringing up this argument I am so bold as to say that the Act itself ought to be amended. This is what I am proposing to do with the amendments. The reason for amending the Act and not merely the Bill in my suggestion is that this matter will create more and more confusion. Every time someone mentions a surrogate mother or a surrogacy arrangement or a bearing mother, a caring mother, a genetic mother or any other kind of mother, he will immediately have to say what he means. With simple words one does not have complications. I believe this is worth the trouble. It is possible legislatively speaking to amend the Bill to stop the complication before it gets any worse, because I believe it will get worse and worse.
My proposal in Amendment No. 6 is to amend subsection (2). The Act says:'Surrogate mother' means a woman who carries a child in pursuance of an arrangement … made before she began to carry the child, and … made with a view to any child carried in pursuance of its being handed over to, and the parental rights being exercised (so far as practicable) by, another person or other persons".This came to pass because we imagine a woman who cannot have a baby for some reason or another; so, as 174 we well know by this time, another woman is enlisted to have the baby in her place. That woman is described as the "surrogate mother". But that woman is the mother, in my contention. It is all very well to in vent new definitions; but, if they are to be invented, they should not be precisely the opposite of what we already understand by the word when we read our dictionaries. This is what I was referring to when I referred to my late noble friend Lord Conesford: Let the winter be deemed to be the summer! Let the mother be deemed to be the surrogate mother!
The surrogate mother is the women who receives the baby and brings it up as an adopted child. The mother is the mother; and that, I think, is that. Therefore my amendment proposes to say in place of that section:'Surrogate mother' means a woman who, in pursuance of an arrangement made before the carrying of a child by its mother began, assumes the parental rights of a mother in relation to that child.The word "assumes" may not be correct in law. I am not sure about that. But she is the surrogate mother by my definition.
Then we go on to subsection (3) which reads:An arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.So the woman who has the baby is the surrogate mother. She is the substitute. But for what? For the real mother? No, she is the real mother. So, for what is she a surrogate? She is the surrogate, according to the logic (if that is not too strong a word to use in relation to what lies behind this Bill or Act) for somebody who cannot have a baby. But that does not make her a surrogate mother; it makes her a mother. The woman who gets the baby is the substitute for that original mother who hands the baby over by process of adoption.
This is the perfectly ordinary, simple, straightforward situation that actually occurs. It seems to me that although we understand what is the logic of the Bill and of the Act, the complications that are going to arise from it are great enough to make it wise to change the whole thing and put it into ordinary common English. Those are my arguments about the whole group of amendments. I beg to move Amendment No. 2.
§ Lord Coleraine
I wonder whether I could help my noble friend to come to a working relationship with the definition of "surrogate mother" in the Act and in the Bill if I suggest to him that he might think of "surrogate" and "mother" as both being nouns; so that when he is thinking of substitute mother he is thinking of somebody who is at once a substitute and a mother.
The Earl of Halsbury
I have much sympathy with the semantic conscience of the noble Earl who likes to see the English language properly used according to the meanings that one finds in the Oxford English Dictionary. But I am afraid that there are sad precedents aplenty for transatlantic misuses of our language to cross the Atlantic and establish themselves here as the jargon of some particular specialisation
I think that the term "surrogate mother", in the strict sense of the word, is totally misleading but I bow 175 before the inevitable. It has invaded our jargon and I do not think that there is now any chance of getting rid of it. Strictly speaking, a surrogate mother would be somebody who acts as a substitute for a mother—that is, somebody who is a mother by adoption or one who adopts a child. That would be a correct use of "surrogate mother". But it is no longer going to be used in that sense. It is going to be used in the sense in which it is used in the Warnock Report and in the 1985 Act. I am afraid it is quite inescapable that that should continue. I believe that the noble Earl's three amendments really are an attempt to evade something that is more or less inescapable. There is another purely legal aspect of this about which we have to be very careful. When it comes to the construction of Acts in the courts there is a general principle that any variation of wording must be intentional. Debates in Parliament are not matters of which the courts take cognisance.
In seeking the intention behind a change of wording, the courts can upon occasion invent rather surprising intents to account for the variation. I have checked what I have just said with my noble and learned friend Lord Denning, and he tells me I am quite correct. So that we do not want to have "surrogate mother" used in one sense in this Act and in another sense in the 1985 Act. Nor do we want to invade the province of the Adoption Act 1976 because a "surrogate baby", if I may use that expression, can only become the child by adoption of those who have made the surrogacy arrangement, legal or illegal, by going through the procedures laid down in the 1976 Adoption Act. We really must not get our nomenclature so confused that we run into trouble with yet another Act.
For that reason I believe that the noble Earl's Amendments Nos. 2, 6 and 7 do not really amount to a sufficiently thought-out programme of reform for the semantics of this subject. I can only hope that he will not press them to a Division on this occasion but that he and I may perhaps get together and he may choose a new form for them at a later stage of the Bill.
§ The Earl of Cork and Orrery
I am most grateful to the noble Earl for his conciliatory reply to my suggestions. If he will have a little discussion with me between now and Report stage, I shall be more than happy. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Coleraine moved Amendment No. 3:
Page 1, line 8, after ("shall") insert (", in any case where the surrogate mother is the genetic mother of the child and").
§ The noble Lord said: I have tabled this amendment as a peg from which to fly a kite in relation to the particular kind of surrogacy to which the noble Lord, Lord Winstanley, referred in discussing the Question that Clause 1 stand part—the case of a childless couple where the husband is fertile and where, although the wife can ovulate, she cannot or should not carry her child to full term. The idea is that an egg is fertilised by the husband and implanted in a surrogate. The surrogate is to carry the child to birth and after birth the surrogate is to hand the baby to the commissioning parents to bring up as their baby.176
§ My amendment provides that Clause 2 of the Bill does not apply to such commissioning parents. I am aware that the commissioning couple I have described have, at least before this evening, received scant sympathy in this Chamber. Last summer when we considered the Surrogacy Arrangements Bill the perceived problem was the Baby Cotton type of surrogacy situation. Surrogacy by implantation was hardly more than a cloud on the horizon of what we might have seen as a brave new world; yet already many Members of the Committee, including the noble Earl, Lord Halsbury, had given careful consideration to the problem and spoke strongly against surrogacy by implantation.
§ Clause 2 of this Bill reproduces the amendment put forward by the noble and learned Lord, Lord Denning, at Committee stage on 28th June 1985. That was widely supported by all who spoke, except for my noble friend the Minister, Lord Caithness, who saw reason to counsel caution. So I am aware that there is an innate hostility to a commissioning couple of the sort I have described.
I suspect that what lies behind this hostility can best be summarised in words used by my noble friend Lord Reading during the Second Reading of the Surrogacy Arrangements Bill last summer. They are to be found in col. 1532 of Hansard of 14th June 1985. He said:
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."—[Official Report, 14/6/85; col. 1532.]
Those are telling words. I hold no brief for surrogacy in general for the very simple reason that it must in very many cases, if not most, lead the child of the surrogate birth, when he discovers his or her antecedence, to ask the questions: who are my mother and my father? Who am I?
§ 10 p.m.
§ When it comes down to rock bottom, a couple who are prepared to bring a child into the world taking the chance that their child may grow up to ask those questions must be prepared to answer a charge of gross selfishness, however great may have been the wife's distress at not being able to carry her baby to term—a distress which may well in many cases have been compounded by frequent miscarriages. Nevertheless, we must accept that where pregnancy and birth take place following egg or embryo transplantation, whether the case is one of donations, with which we are not dealing tonight, or surrogacy, the essential functions of motherhood have, in fact, been fragmented. We shall not necessarily succeed in our endeavours if we try in our legislation to set aside physical laws.
§ Clause 2 provides that a child born to a surrogate mother is to be the child of that mother for all purposes in law. When the noble and learned Lord moved his amendment last year, my noble friend Lord Caithness pointed out that where the surrogate mother is also the genetic mother the law is clear, and she, the surrogate mother, is alone the parent of the child, but that where the commissioning couple have caused 177 their egg and sperm to be implanted in a surrogate the law is unclear as to whether the commissioning mother or the surrogate is to be regarded as the lawful parent. My noble friend recommended on that occasion that it was too early to rush into accepting the amendment while the last point was still under discussion, and the noble and learned Lord withdrew his amendment on that occasion.
§ I am still for following the reasoning of my noble friend Lord Caithness on that occasion. I would be for giving statutory effect to what is clearly understood to be law while continuing to leave the rest for further consideration. I do not for one moment suggest that the commissioning couple should be treated as the parents of the child simpliciter, but merely that there is a case that the child should not be declared to be the child of the surrogate for all purposes in law.
§ I would say that the child himself has an even stronger case that his commissioning parents should not be so lightly dismissed by the law. In the majority instances of this type of surrogacy, I should imagine that the commissioning couple will receive and care for the child after its birth, and I hope that that would be considered a satisfactory conclusion to such an arrangement. I find it difficult to see how it could be shown to be demonstrably to the advantage of the child to be brought up by the woman who had merely received another couple's embryo as their surrogate and then kept the child, if only because the feelings of that child on discovering the true facts would surely be no less disturbing than those of a child brought up by commissioning parents on learning that his pregnancy had been passed in the womb of their surrogate.
§ If we take the case of a baby received by the commissioning parents from their surrogate after the birth, I can envisage several areas in which the commissioning parents ought perhaps to be recognised in law as being more than merely prospective adoptive parents. Should they not have the prima facie right to bring up the child as its parents? Is it not in the interests of the child that that should be so? It may be that the commissioning parents should go through some formal procedure before full recognition is given to their status in relation to the child, but should this be an adoption process, as Warnock suggests? Are we being fair to the child if we call him an adopted child when he is in fact, and has been brought up to believe himself to be, the true child of his own genetic parents?
§ If we take the converse case of a surrogate who decides to renege on her bargain and keep the baby she has carried and given birth to, I would not for one moment suggest that there is in principle any reason for suggesting a case for untying the bonds which are formed during pregnancy. All the same, what if the surrogate were seeking to keep the baby only as a means of extorting money from the commissioning parents? What if the surrogate proved unsuitable to look after the baby or wished to have it adopted? Should not the parents have at least greater inchoate rights than the rest of the world in respect of the child? Should they not have some right of application to a court to determine questions affecting the child?
§ I am not tonight suggesting any answers to those questions; I am only raising the questions. I do not think that the question is as clear as the Warnock Report puts it. I recommend that the law at this stage 178 should not be clarified in the way proposed by Clause 2 of the Bill. I beg to move.
§ Lord Denning
So far as I understand it, when the surrogate mother is the woman with her own egg and she produces the child she is undoubtedly the mother for all purposes. The point which my noble friend raises relates to a situation where another woman provides the ovum and the medical man injects that ovum into what I call the mother's body. The sperm of a man is joined to it and then that woman carries the baby—the implantation and everything like that—through the whole nine months to its birth.
Who is the mother? Beyond doubt, I should have thought, the law and everyone would hold that it is the woman who carries the fertilised ovum in her body, from the moment of implantation right to the birth. Surely that is the mother. It is impossible to say that the mother who has provided the ovum through a medical man—in a test tube or whatever it may be—is the mother in the circumstances. The law ought to be made quite clear that the mother who has carried the baby all the way through from the conception to the birth is undoubtedly the mother.
You have to remember this. The Warnock Report has a principle of anonymity. You do not know who is the parent—one or the other. That is one of the principles in the report. At all events, let this be certain. The mother of the child is the one who carries it all the way through from conception to birth. I hope that the Committee will approve the Bill as it stands and not accept the amendment.
§ Lord Swinfen
I can see something in my noble friend's amendment in that the commissioning parents who provide the sperm and the egg would have a greater responsibility to the child, over and above the responsibility of other people in the world but after what is known as the surrogate mother. If something went wrong with the surrogate mother I can see that they would have a responsibility to take on and bring up that child.
I am not a doctor; I am a layman. My wife has had four children. Pregnancy, so far as I understand it, does not stop when the child is born. There are other changes in the woman's body. For a time after the child is born, she produces milk, and unless the doctors decide it is unwise for her or for the baby, she gives suck. A natural progression goes on from the time of birth to feeding that child, to looking after it, to bringing it up until finally it is adult enough to leave the nest. In my view, the child should stay with the mother who carries it during the nine months of pregnancy, who gives birth, and who then leads the child on through babyhood, childhood and young adulthood, until he is off into the world and making his own way.
If something goes wrong with the so-called surrogate mother then obviously the commissioning parents, where they have provided both the sperm and the egg, have a responsibility to that child—but not over and above that of what is known in the Act as the surrogate mother. I feel it is essential that the surrogate mother should have prime responsibility and call upon such a child.
I rise to make two points very briefly. First, I believe that the noble Lord, Lord Coleraine, both in his amendment and in his speech upon it, has pointed to matters of immense importance and very great complexity. I agree with much of what he said. I agree also that perhaps such matters cannot be dealt with in this particular Bill in this particular way. Perhaps that reinforces my view that we should have waited for a much more comprehensive Government Bill—the one that we hope will presently come forward.
This gives me an opportunity to say to the noble Lord that of course it was wholly right to call me to task with regard to my definition of surrogacy. I accept that from a grammatical point of view it was too narrow. However, it was the kind of surrogacy about which I was concerned and about which most of the professional workers in this field are deeply concerned. It was for that reason that I defined it so narrowly.
While I am on the subject of grammar, I may add that I greatly agreed with the noble Earl, Lord Halsbury, in his remarks about the use of the English language. As a member of the medical profession, which has perhaps been responsible for introducing some of the new abuses of the English language, the noble Earl might join with me in regretting that, nowadays, medical students do not study Latin as they did in my day.
The Earl of Halsbury
My difficulty in responding to the noble Lord, Lord Coleraine, on the subject of his amendment arises from the fact that the general includes the particular. In the Bill as it stands the provision is of a quite general character. The noble Lord's amendment would restrict that in particular cases.
The Bill is primarily concerned with arrangements and not with medical procedures. There can be many different forms of surrogacy. There can be many kinds of medical procedures. A woman can have an egg extracted, fertilised by her husband's sperm, and reimplanted in her own uterus to obviate some kind of fallopian blockage. Such is perfectly possible. Obviously she would be the genetic mother of the child, notwithstanding all the medical manipulation that had taken place.
One could also have the situation in which the woman arranged for her husband adulterously to render another woman pregnant. That other woman would be the mother of an illegitimate child that might be available for adoption, but she would still be the mother. The working of my Bill is quite general in that respect. It does not specify any particular procedure. From that point of view, I believe that the noble Lord's amendment is not very helpful. I hope that he will either withdraw it or reserve his position until a later stage of the Bill, and perhaps we could discuss the matter between now and then.
§ Lord Coleraine
I assure the noble Earl that not only shall I be withdrawing the amendment but also that I do not propose to reserve my position to reintroduce the amendment at a later stage. I am aware that the amendment presents certain difficulties. Nonetheless, we have had a useful debate. I was grateful to the noble Lord, Lord Winstanley, for his observations, especially 180 in relation to the meaning of the word "surrogacy". We have to face the fact that, in a sense, surrogacy has moved on since last year. Although the Bill is talking about surrogacy in last year's terms, and there are still this year's terms, I am sure that a lot of people outside look upon surrogacy purely as described now by the noble Lord, Lord Winstanley. The other forms of surrogacy are non-issues in the terms of this debate.
My only other comment in relation to the speech of my noble friend Lord Swinfen is that I agree with all he said about the rights of the surrogate as against the commissioning parents. But primarily I was directed to suggesting that, whereas in most cases the bargain will be kept and the commissioning parents will become the true, adopted or genetic parents—or however one puts it—of the baby that is born, there is a good case for considering carefully their position before we shut them out of the law altogether. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 4 not moved.]
§ 10.15 p.m.
§ Clause 2 agreed to.
§ Clauses 3 and 4 agreed to.
§ The Deputy Chairman of Committees (Lord Airedale)
In the schedules, owing to a misprint, I think I should take the next three amendments in the order of Amendments Nos. 6, 7 and 5. However, I understand that Amendments Nos. 6 and 7 are not being moved.
§ [Amendments Nos. 6 and 7 not moved.]
Lord Coleraine moved Amendment No. 5:
Page 2, line 6, leave out sub-paragraph (1).
The noble Lord said: Paragraph 2(1) of the first schedule to the Bill follows the recommendations of the Warnock Report. I should also say that paragraph 2(1) was in fact Amendment No. 3, spoken to with Amendment No. 4, moved by the noble and learned Lord, Lord Denning, at the Committee stage of the Surrogacy Arrangements Bill last year. On that occasion my noble friend Lord Caithness replied to the noble and learned Lord and in relation to the amendment which is now the paragraph I am seeking to have taken out of the Bill my noble friend said about a surrogate mother that if the amendment were passed,
she would be denied many kinds of medical treatment, notably treatment to prevent a threatened miscarriage during her pregnancy".—[Official Report, 28/6/85; col. 933.]
I do not need to tell your Lordships of the importance to the mother and child of adequate pre-natal care.
§ The noble and learned Lord withdrew his amendment at that stage. I do not want to refer tonight to the effects of other subparagraphs in the schedule on this subparagraph, but they seem to make certain private sexual acts matters of criminal offence and there will be many who will see the subparagraph as a most unwelcome intrusion of criminal law into private morality.181
§ The point I seek to make in particular is that paragraph 2(1) discriminates against doctors and fertility clinics that might propose to carry out in vitro fertilisation and embryo implantation, which we have already discussed. What the subparagraph does is effectively outlaw this treatment by the back door. It seems to me that all the other forms of surrogacy can be achieved by do-it-yourself methods. Paragraph 2(1) would appear to have the tendency of driving underground all surrogacy arrangements except those made on a do-it-yourself basis. That is the point made most tellingly by Doctors Greengross and Davies in their expression of dissent to the Warnock Committee Report. I find of particular concern the fact that paragraph 2(1) criminalises the monetary side of surrogacy to such an extent that it will really leave lawful surrogacy possible only within the family.
At the Second Reading of this Bill, the right reverend Prelate the Bishop of Ripon said that he did not want to claim that the Church of England had a consensus which extended to the total banning of surrogacy. At col. 576 he said:
even within the church there are those who believe that it may be right and proper that a woman should offer in loving service the use of her womb to someone who is close to her … I hope that whatever is put into law will leave a space for that kind of loving service that I have mentioned".
On the other hand, in the same debate, at col. 579, my noble friend Lord Swinfen referred to the problems which may arise when a woman's mother acts as surrogate for her unfortunate daughter, and vice versa. I must say that I myself believe that there are really many more problems than there are elements of desirability in this form of loving service, however well meaning it may be.
§ In conclusion, I submit that the total criminalisation of monetary consideration in all surrogacy arrangements seems to be a recipe for a botched surrogacy, which will result in the worst of all possible worlds. I beg to move.
§ The Lord Bishop of Birmingham
I was not present when the right reverend Prelate the Bishop of Ripon spoke at the Second Reading of this Bill. It could well be that when he was talking about loving service he was not talking about in vitro fertilisation, or arrangements which require the services of doctors, nurses, solicitors or the like, but was simply thinking of private matters of surrogacy by natural procreation. I do not know.
I myself think that it is very undesirable to legalise non-profit-making organisations in this connection, because organisations create their own dynamic and their own momentum. People make their living out of them, even if they are not profit-making; and whether the people making their living are doctors, nurses, administrators, solicitors or whatever, those who work for such organisations have a vested interest in promoting their growth. They may even advertise their functions. There is reason to think that this is the case with certain non-profit-making organisations concerned with abortion or with the distribution of contraceptives to teenage girls.
We do not want non-profit-making organisations spreading what I think is a false gospel of surrogacy. Therefore, if the clause, to which the noble Lord takes 182 exception, prevents this happening, I hope that it will please your Lordships.
§ Lord Denning
I should like to say that I hope we shall retain provisions which render commercial surrogacy illegal. The Warnock Committee considered this matter very closely. The report, at paragraph 8.18 on page 46, says—and I think I had better read the whole of the paragraph:We have considered whether the criminal law should have any part to play in the control of surrogacy and have concluded that it should. We recognise that there is a serious risk of commercial exploitation of surrogacy and that this would be difficult to prevent without the assistance of the criminal law. We have considered whether a limited, non-profit making surrogacy service, subject to licensing and inspection, could have any useful part to play but the majority agreed that the existence of such a service would in itself encourage the growth of surrogacy. We recommend that legislation be introduced to render criminal the creation or the operation in the United Kingdom of agencies whose purposes include the recruitment of women for surrogate pregnancy or making arrangements for individuals or couples who wish to utilise the services of a carrying mother; such legislation should be wide enough to include both profit and non-profit making organisations. We further recommend that the legislation be sufficiently wide to render criminally liable the actions of professionals and others who knowingly assist in the establishment of a surrogate pregnancy".That is the conclusion of the Warnock report. In a way, that is what we were trying, and are trying, to do in the Bill. I hope that the Committee will approve of this method.
The Earl of Halsbury
I am grateful to my noble and learned friend for taking the Committee through that passage of the Warnock report. It saves my having to do so. The point was taken in the Committee stage of the Bill last year that those recommendations of the Warnock Committee are drawn rather too widely and that as they stand, they would place a penalty on seeking advice as to what was or was not medically possible on the one hand or what was or was not legal on the other. For this reason, the words "establishment of a pregnancy" are used in my amendment to restrict the wrongful activities to what establishes a pregnancy as opposed to advice given about it.
The seeking of advice as to what is possible and what is legal does not establish anything, let alone a pregnancy, with the possible exception of answers to questions. The choice of those words as used in my Bill will effectively place an embargo on the progress, as I have warned previously, of vested interests and precedents growing up until the Government Bill, promised and awaited, but as yet undated, takes the whole subject under review, in which case it has always been my understanding that the Government will repeal their own Act and this Bill, if it reaches the statute book, as part of the wider legislation that they will introduce.
§ Lord Coleraine
I am glad that the noble Earl has taken this opportunbity to explain his reasons for introducing this amendment to the 1985 Act. I shall read carefully what he has said and consider my position at the next stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 6 and 7 not moved.]183
§ The Earl of Halsbury moved Amendment No. 8:
Page 2, line 17, leave out sub-paragraph (3) and insert—
("(3) In subsection (3) of that section—
- (a) in paragraph (a) leave out the word "or" in the second place where it occurs, and insert the words "or in respect of any other act performed by him in relation to the surrogacy arrangement, or";
- (b) in paragraph (b) at end insert the words "or in respect of any other act performed by him in relation to the surrogacy arrangement"; and
- (c) leave out the words from "In this subsection" to the end.")
The noble Earl said: With the leave of the Committee, I should like, in moving this amendment, to speak also to Amendment No 9 standing in my name. The Committee will remember that during Second Reading the point was raised that the present Act can be, and it was suggested is being, evaded by placing a contract, for example, to write the surrogate mother's memoirs on what it feels like to be a surrogate mother, and so on, related to her experience. I promised to look into the matter and was advised to table these amendments to close the door to evasion. The operative words are:
any other act performed by him in relation to the surrogacy arrangement".
§ They occur four times altogether, twice in each amendment. If I consider the first occurrence in Amendment No. 8 as typical, the remainder are consequential and merely respect the need for uniformity. The part of the amendment marked (c) merely reintroduces the deletion already made by leaving out sub-paragraph (3) at the head of the amendment. I am advised that the use of the words "performed in relation to" etc. narrows the field sufficiently to avoid undesirable side effects. I beg to move.
§ Lord Denning
I support the amendment. It deals with such matters as writing memoirs, which is a form of payment.
§ Baroness Trumpington
I am grateful to the noble Earl, Lord Halsbury, for the opportunity that he has given us to debate this tightening up of the provision in Section 2(3) and 2(4) of the 1985 Act. It is clearly right that the aim of that Act to prohibit the operation of commercioal surrogacy agencies in this country should not be frustrated by obvious loopholes. If that ever proved to be the case, I am sure that the Government would want to look closely at the need for amending legislation. Meantime, we shall note the views expressed by the noble Earl, and by the noble and learned Lord, Lord Denning on this amendment very carefully when we come to consider the need for legislation to deal with the issues in the Warnock report.
§ On Question, amendment agreed to.
§ 10.30 p.m.
§ The Earl of Halsbury moved Amendment No. 9:
Page 2, line 18, at end insert—
("( ) In subsection (4) of that section—
§ The noble Earl said: I have already spoken to this. I beg to move.
§ On Question, amendment agreed to.
§ Lord Swinfen moved Amendment No. 10:
Page 2, line 35, at end insert—
(". In section 4 of that Act (offences) in paragraph (a) in subsection (1) leave out the words "level 5 on the standard scale" and insert ("£20,000".")
§ The noble Lord said: It may be for the convenience of the Committee if I also speak to my Amendments Nos. 11 and 12 while moving Amendment No. 10. I moved similar amendments to Amendments Nos. 10 and 11 on 28th June 1985 when the Surrogacy Arrangements Bill was in Committee. Despite having support from all those who spoke I withdrew my amendments to ensure the safe passage of that Bill through both Houses.
§ The reports that there have been in various newspapers indicate that a fine of level 5, which I am assured is only £2,000, for commercial arrangements is ridiculously low. There have been various figures bandied about, some in this country, some in the United States. Working on the principle that often what happens in the United States today happens in the United Kingdom tomorrow, the highest figure that has been reported from the United States was, I believe, some 80,000 dollars. At today's rate of exchange that works out at somewhere in the region of £54,000 or £55,000 for commercial arrangements. A fine of £2,000 on that is petty cash and can be swallowed up in the expenses.
§ As the Committee can see from the amendment, my proposal is to change from level 5 to a figure of £20,000. As I pointed out last year, we already have provisions on summary jurisdiction for a fine of up to £10,0000 under the Local Government (Miscellaneous Provisions) Act 1982, Schedule 3, paragraph 22. The Video Recordings Act 1984 on summary conviction provides for a fine not exceeding £20,000. In addition to that, under the Customs and Excise Management Act 1979 a summary penalty can be fixed of three times the value of the goods. I have been in court when magistrates have had the power to fine on goods of some £16,000 in value. Three times that, if my arithmetic is correct, is some £48,000. I am not suggesting that we go anywhere near that.
§ My Amendment No. 11, to increase the imprisonment penalty from three months to six months, brings the penalty in line with Section 50 of the Adoption Act 1958 which was shown by my noble friend Lord Caithness last year as being the kind of principle on which the Government were working at that time.
§ Amendment No. 12 takes account of suggestions by my noble friend Lord Brentford who pointed out that if there was no provision in the Bill for variation of the fine in the years ahead, and by some mischance inflation proceeded at a high rate, £20,000 would soon be chicken feed. My noble friend Lord Caithness, when answering my amendment last time, said that if the penalties were insufficient to deter, the Attorney-General may obtain a High Court injunction to restrain people involved in commercial surrogacy and that a breach of such an injunction is a contempt of 185 court with a penalty of imprisonment of up to two years and an unlimited fine.
§ Although many people will be aware of the Surrogacy Arrangements Act and no knowledge of the law is not an excuse, there are not very many people who are aware that when someone goes on disregarding the law, the Attorney-General gets an injunction. It is my belief that the penalties set out in the various Acts of Parliament should themselves act as a deterrent, and I do not think that the penalties in the Surrogacy Arrangements Act 1985, as they now stand, are sufficiently large to act as deterrents. I beg to move Amendment No. 10.
§ Lord Denning
I should like to support this amendment for the reasons which my noble friend Lord Swinfen has given. When large sums of money pass to the surrogacy organisations, it is important that criminal law should be strong enough to fix a proper penalty and if need be, imprisonment. As to the other suggestion about the Attorney-General, the courts are very chary about interfering by way of injunction to enforce a criminal law when penalties are already provided by this statute. It is not at all right to rely on the Attorney-General and the procedure of an injunction, which does not appear in the statute. The primary way of dealing with these is the criminal law by fine or imprisonment. Therefore, I support entirely what my noble friend says.
The Earl of Halsbury
This takes me a little out of my depth. The noble Lord, Lord Swinfen, must fight his corner on this. I should be happy to adopt his three amendments, provided that the Government do not warn us against any undesirable side effects that they may have. In that case, the noble Lord will doubtless seek time to consider what they have to say.
§ Baroness Trumpington
I do not think that the arguments have changed since the last round when my noble friend Lord Caithness spoke, but I must retreat to my neutral corner.
§ Lord Swinfen
I think that I covered in my opening remarks the comments made by my noble friend Lord Caithness last time, and, therefore, I beg to move Amendment No. 10.
§ On Question, amendment agreed to.
§ Lord Swinfen moved Amendment No. 11:
Page 2, line 35, at end insert—
(". In section 4 of that Act (offences) in paragraph (a) in subsection (1) leave out "3" and insert "6".").
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ 10.39 p.m.
§ On Question, Whether the said amendment (No. 11) shall be agreed to?
§ Their Lordships divided: Contents, 13; Not-Contents, 14.186
|DIVISION NO. 2|
|Boyd-Carpenter, L.||Hacking, L.|
|Buckmaster, V.||Halsbury, E. [Teller.]|
|Butterworth, L.||Mowbray and Stourton, L.|
|Coleraine, L.||Sidmouth, V.|
|Cork and Orrery, E.||Swinfen, L. [Teller.]|
|Denning, L.||Vaux of Harrowden, L.|
|Airedale, L.||Morris, L.|
|Craigavon, V.||Parry, L.|
|Dean of Beswick, L.||Ross of Marnock, L.|
|Galpern, L.||Stoddart of Swindon, L. [Teller.]|
|Hylton-Foster, B.||Whaddon, L.|
|Kagan, L.||Winstanley, L.|
|McNair, L. [Teller.]|
§ 10.48 p.m.
§ The Deputy Chairman of Committees (Baroness White)
As it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 55 I declare the Question not decided and, pursuant to the Standing Order, the House will now resume.
§ House resumed.