HL Deb 26 June 1986 vol 477 cc477-83

7.26 p.m.

The Earl of Halsbury

My Lords, I beg to move that this Bill be now read a third time. In rising to move this Third Reading I am aware that this is a debatable Motion and that certain noble Lords will wish to enter into a debate upon it. I shall therefore make a few brief introductory comments before I move the Motion.

This all starts with a committee chaired by my noble friend Lady Warnock, known as the Warnock Committee, in which the subject of inquiry was, first, experimental research on embryos, and, secondly, surrogacy arrangements where one woman acts as the incubator for another woman's egg. The Government have merely said that at some stage in the future they will consider legislation to implement the findings in the Warnock Committee's report with respect to experiments on embryos.

However, in the last Session of Parliament they introduced a Bill which implemented those issues where the Warnock Committee was unanimous. There were other issues where the Warnock Committee voted by a majority in favour of certain recommendations which were not included in the Government Bill but were proposed as amendments to a Bill in the last Session. It was very late in the Session. It was undesirable that the matter should be referred back to another place and the Government Bill went through unamended. At that time, I undertook to introduce a Private Member's Bill to give effect to the amendments that had been proposed to the Government Bill in the last Session, and that is the Bill before the House tonight.

There is little I need say on the subject apart from recapitulating the history of the matter. The Bill may have its friends and it may have its opponents. If its opponents choose to cast down the gauntlet I shall pick it up and we shall have a Division in the dinner hour. Otherwise it will go through, I hope, on the nod. I beg to move.

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

Lord Ennals

My Lords, in speaking on this Third Reading I am speaking only for myself and not for the massed ranks of my colleagues behind me. I have several times in the consideration of this Bill thanked the noble Earl, Lord Halsbury, for introducing this Bill because it has given us the opportunity to discuss issues of very great importance. But I have also expressed grave personal reservations about passing this Bill into law. I must admit that I should have fought harder against this Bill if I had thought that it had any chance of becoming part of the law of the land. I think it is unlikely that that will be the case.

There are two reasons that I have set out before, but I think that I should do so again on Third Reading. We shall have a measure before us eventually. Perhaps the noble Baroness may help us with the timetable. She may say that she expects that next year, or sometime or soon (that is a popular word with your Lordships) we shall have major and comprehensive legislation on the issues raised in the committee presided over by the noble Baroness, Lady Warnock.

Basically, I do not favour legislation in bits and pieces. When we have a major problem, as with the reform of the child care legislation, the best thing to do is to try to deal with it all at once. There was one emergency piece of legislation that we needed to get through quickly, and we did so. I fully supported it and so too did my colleagues. But I want this issue of surrogacy to be taken as part of the legislation to be introduced by the Government. That is my first argument.

My second argument is one of substance. I do not want to close the door totally at this stage to any form of surrogacy. At Second Reading I quoted—and I hope the House will forgive me for doing it again, but it seems to be quite appropriate—what the noble Earl, Lord Caithness, had said in the course of a debate in your Lordships' House on 28th June 1985. His words were quoted during our debate on 11th March at Second Reading. He said: 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".—[Official Report, 11/3/86; col. 585.] I agreed with the noble Earl. I said that I did not want to close the door totally to this possibility.

I suppose that my views are really close to those of the minority report which was presented by Dr. Wendy Greengross and Dr. David Davies. Perhaps I can quote just three paragraphs which express the view that I hold and which, of course, they hold. The second paragraph said: We… share with our colleagues many of the concerns expressed in Chapter Eight [which is dealing with surrogacy]. The practice of surrogacy could lead to serious problems"— and that has been pointed out to us very well in earlier debates by the noble and learned Lord, Lord Denning. 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". That puts one side of the argument, and it is very much that which is shared by most Members of the Committee.

Perhaps I may quote a sentence from paragraph 5 of the minority report. It reads: 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 of childlessness". In each of the opportunities we have had for debating this issue, I have always expressed my sympathy for the childless couple.

My last quotation is from paragraph 9 of the minority report. It reads: 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". It was more than a year ago that the report was published. Thus we think it is too early to take a final decision one way or the other. We wish to have the opportunity in the next few years to see what the demand is, whether an agency is prepared to come forward to satisfy it, and whether the consequences are generally acceptable or not. We simply ask that the door be left slightly ajar so that surrogacy can be more effectively assessed". In my view, if the Bill presented by the noble Earl, Lord Halsbury, were to be carried, it would not leave the door ajar in any way—which is my objection to it. I simply ask that the door be left slightly ajar so that surrogacy can be more effectively assessed.

Lord Denning

My Lords, I hope that your Lordships will pass this Bill this evening and that it will go through another place equally quickly, for this simple reason. The law should not be left uncertain for years. It is most important for the community that the law should be declared now on these important matters. It is two years since the Warnock Report was produced, and, goodness knows, it may be another two years before the Government (or whoever it may be) propose further amendments to it. Are we to wait all that time before we have a Bill and law dealing with the matter?

Let me take some elementary points which are provided for in this Bill and which were left open the last time, in the 1985 Act. This is the simple question. Is a surrogacy arrangement lawful or unlawful? The last Act left it uncertain. The Warnock Report said quite clearly that the law would hold, they thought, and should hold, that it is unlawful, and for this simple reason. If you have a surrogacy arrangement like that, suppose the mother wants to keep the child and the commissioning parents say, "We want it. You are breaking your agreement", and they sue her. If it were a lawful agreement, they could do so.

On the other hand, if they do not want the child after it is born and the woman who bore it says that they ought to have it because they commissioned it then, if it were a lawful agreement, she could sue them. It is imperative in this first clause to follow out the Warnock recommendation that any arrangement which is a surrogacy arrangement is unlawful, whether or not made with a view to payment. The law must be clear upon it, and it should be declared in this Bill as soon as may be.

Then comes the next question. What is the position of the child who is born of a surrogacy arrangement? Take the instance where a woman cannot have her own child for some reason or another, the egg is taken from her, mixed with a man's sperm and put into the womb of what I would call the real mother. The law should be clear here and now who, in law, is the mother of that child. Who is the parent of it? The answer at the moment, as I would give it, is that the mother of the child is the mother who has borne that child in her body from the very moment when it was put there and conceived until the time when it is born.

The Warnock Report recommended that a child born to a surrogate mother in pursuance of a surrogacy arrangement shall for all purposes in law be regarded as the child of that mother. Surely that is right. The law should be clear about it. The woman who has borne the child in her womb from the first moment to the date of birth surely, in law, is the mother of that child; and the man who has provided the semen can have no right in the matter whatever. That is an important point of law to be decided at once in those first two clauses.

Then we come on to the rest of it. It is dealing then with surrogacy arrangements for money, for commercial purposes. As the Bill originally went through before these amendments, it hit only at the organisations themselves who made the arrangements if you could get at them at all. As we know, most of them have come from America, where, I am sorry to say, this is all lawful. Are we to have it here in face of the clear recommendation of the Warnock Committee, which recommends 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? We can see what has happened since the original Act was passed in 1985 and before we have got this Bill on to the statute book. There was a heading in the Daily Telegraph of 15th May which read: Two surrogate mothers defy legal ban". What happened was that there were two women, and apparently an American agency arranged for pregnancies of those two women from other men's sperm. They were both British, living in London, and they would be paid fees for taking part in this matter and for keeping a diary.

Lord Ennals

My Lords, would the noble and learned Lord give way for a moment? I am grateful to him. He is describing a very grim situation, and of course this House and Parliament have already abolished agencies—and thank Heavens they have. I wonder what the noble and learned Lord's comment is on these two sentences from page 45 of the Warnock Report: Moreover, the bearing of a child for another can be seen, not as an understanding that trivialises or commercialises pregnancy, but, on the contrary, as a deliberate and thoughtful act of generosity on the part of one woman to another. If there are risks attached to pregnancy, then the generosity is all the greater". Could not the noble and learned Lord look at it in that light rather than in the rather fearsome and bloodcurdling light that he has described so far?

Lord Denning

My Lords, we can each read paragraphs from the Warnock Report to our liking. I am quite clear about this. The present Act does not go far enough. The case I was telling your Lordships about, whether done by an American agency or not—arranging for women to be impregnated with other men's sperm in order to get a child and being paid £7,000 each if they kept a dairy of their experiences—are we to allow that sort of thing in this country? No, my Lords.

Each part of this Bill as we would seek for it to go through is dealing with an immediate danger, an immediate harm to society and immediate things which are going wrong. We ought to make the law clearer upon that, as it is indeed made clear in this amending Bill which has been presented to your Lordships and which is now on its Third Reading. I hope your Lordships will not hesitate, because it is vital that the law should be made clearer now, rather than waiting for two or three years. If it waits for two or three years a lot of these harmful effects on society will go on and almost become established, as they have in America. For goodness sake! Let us get this amending Bill through now. I hope the other place will also get it through quickly. I will certainly support the Bill in every part.

7.45 p.m.

Lord Swinfen

My Lords, if we wait for the Government to produce legislation on the whole of the Warnock Report I think we may well have to wait a long time. These are moral issues and, as such, throw up important decisions of principle which make drafting extremely difficult.

The noble Lord, Lord Ennals, said that he did not like legislation in bits and pieces. What does Parliament do but legislate all the time in bits and pieces? It is our task continuously to amend the laws that are out of date and to bring in new ones to cater for new circumstances. The noble Earl, Lord Halsbury, is catering for new circumstances thrown up as a result of the passing of the Surrogacy Arrange-ments Act. Things were found not to work. Other people will come in with other Private Bills, I am sure, to deal with other parts of the Warnock Report. Medical and scientific advances will go on: they seem to be going on at an increasing pace. If we wait for a Bill to deal with the whole of the Warnock Report, that report will be well out of date. We shall need another Warnock and another report on a totally different issue. I do urge your Lordships to pass this Bill and to give it a fair wind. Then let us move on.

Lord Edmund-Davies

My Lords, the noble Lord, Lord Ennals, seductively said that all he seeks is to have the door left open. Left open to what? Left open for indefinite length to the present state of affairs? Can anybody contemplate the position in this country at the present time with any degree of complacency, or are we not bound to be convinced that it is a most undesirable and unsettling position which is full of foreboding for the future? The problem confronting this House tonight, in my submission, is not a grave or difficult problem. This Bill should be adopted.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington)

My Lords, I, too, am not absolutely sure whether I speak for the even more massed ranks on this side of the House, but I do speak for the Government. First of all, I am sure the House would wish me to thank the noble Earl, Lord Halsbury, for giving us, through this Bill, a further opportunity to debate the issues of surrogacy. We have had a number of useful debates, and the proceedings on this Bill are, I think, a good example of how the issues that arouse public concern and deeply-held views can benefit from careful and considered debate in this Chamber.

I made clear when we debated this Bill on its Second Reading that the Government have adopted a neutral stance for the present, as they are considering the matters dealt with in the Warnock Report, including those concerning surrogacy. It remains our aim to introduce a comprehensive Bill on all these issues as soon as practicable. There is no need for me to stress the point that such legislation will be complex and will touch on several ethical issues on which many people, quite properly, have strongly-held opinions. While this may not hold true to the same extent in the case of surrogacy as in the case of embryo research, it is nevertheless the case that there is a wide range of opinion on some of the matters dealt with in this Bill, as demonstrated by the views expressed by the noble Lord, Lord Ennals, on one side and the noble and learned Lord, Lord Denning, on the other.

I understand that the activities reported in the Daily Telegraph, to which the noble and learned Lord, Lord Denning, referred, concerning the involvement of American women in surrogacy cases, are being examined by the Director of Public Prosecutions.

I am very much aware that there is little of substance I can say to day about this Bill, nor indeed about the detailed timing of future government legislation about these matters. However, whatever the fate of this Bill, it will have been valuable as a vehicle for the discussion of these issues and as a stage in the development of further consultation and research into these matters. We will pay particular attention to the views expressed during these debates in considering the content of future legislation. Even if the Bill does not make further progress on this occasion, I am sure that this has been a most useful exercise. I would therefore end by repeating my gratitude to the noble Earl, Lord Halsbury, who is one of the most respected Members of your Lordships' House.

The Earl of Halsbury

My Lords, I will wind up very briefly and thank the noble Baroness for her kind remarks about the part I played in this matter. The issues between myself and the noble Lord, Lord Ennals, are very simple: he wants to keep the door open and I want to keep that door shut until the future adumbrated by the noble Baroness bears fruit in this House and in the other Place.

What happens if you leave doors ajar? Vested interests flourish behind them and once you have allowed vested interests to establish themselves they are very difficult to get rid of. If I may mix my metaphors, a fine crop of weeds you will find growing behind that door left ajar for a very short time. I do not think I need to say more than that.

On Question, Bill read a third time, and passed, and sent to the Commons.

Baroness Hooper

My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.50 until 8 p.m.]

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