§ 7.24 p.m.
The Earl of Halsbury
My Lords, I beg to move that this Bill be now read a second time. I do not intend to make a long speech as the Bill represents the fulfilment of a promise made to a number of noble Lords on the occasion of their responding to the Government's plea not to press their amendments to a Division at the Committee stage of the Government's own Surrogacy Arrangements Bill in the last Session of Parliament, for fear of losing the Bill altogether if it had to be returned to the other place amended,
In conference with those who wished to see its provisions strengthened, I undertook to resurrect their amendments in a Private Member's Bill which I 575 promised to introduce in the following—that is, this—Session of Parliament. The Bill now before your Lordships represents that promise kept. In the end, all amendments bar one stood in the name of my noble and learned friend Lord Denning, and it is his amendments that I have resurrected in this Bill, with one exception. The exception is an amendment that stood in the name of the noble Lord, Lord Swinfen, dealing with the level of punishment. This he can reintroduce in Committee as an amending inclusion to Schedule 1 to the Bill, if he is minded to do so.
I shall now briefly take your Lordships through the structure of the Bill. Clause 1 embodies Lord Denning's first amendment. It states quite simply that surrogacy arrangements are unenforceable at law, placing the current opinion of lawyers beyond a peradventure. They believe that that is the law now, but it has never been tested in the courts. It was supported by Lord Craigmyle, Lord Buckmaster, Lord Edmund-Davies, Lord Campbell of Alloway and Lord Lauderdale. It was supported in principle by Lord Swinfen and Lord Prys-Davies who, however, expressed caution as to the effects of returning the Bill amended to the other place. Paragraph 1 of Schedule 1 also bears on this matter.
Clause 2 embodies the second amendment of my noble and learned friend Lord Denning in the previous Bill, and confirms the opinion of lawyers that the mother of a child is, in law, she who bears it and not some third party who may have donated an egg for incubation. It was supported by the right reverend Prelate the Bishop of Ripon, Baroness Phillips, and Lord Craigmyle. Clause 3 recites the relationship between this and the Government Act of last year, now on the statute book. Clause 4 deals with the Short Title, certain definitions and the extension of the Bill to Northern Ireland.
My noble and learned friend's third and fourth amendments were intended to implement the Warnock Committee's Report on page 47, which I shall quote: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 was the recommendation of the Warnock Committee.
His amendment was supported by the Bishop of Ripon; but it was opposed by Lady Warnock, Lord Edmund-Davies and Lord Prys-Davies. It is dealt with in paragraph 2(1) of Schedule 1. My noble and learned friend's Amendments Nos. 5 to 12 were again concerned with implementing the Warnock Committee's report with respect to both profit and non-profit-making organisations; but in the result they were not moved. They are resurrected in paragraphs 2(2) to 2(6) of Schedule 1.
Schedule 2 is a so-called Keeling schedule. The schedule is named after Sir William Keeling, MP, who first recommended this form for amending legislation. His proposal was endorsed by the committee on the preparation of legislation, which was appropriately named the Renton Committee after the subsequently ennobled Lord who chaired it and reported in May, 1975.
576 As all the amendments to which I have referred were confined to Sections 1 and 2 of the Government Act, Schedule 2 in Keeling form shows how the first two sections of that Act will appear as amended by Schedule 1. The underlined passages will be deleted and those in bold print inserted. The typographical implementation of this will be attended to by the Public Bill Office when the Bill is ready for Royal Assent.
My Lords, there is nothing in this Bill that was not fully debated in the last Session of Parliament. There is no pressing need to debate it all over again at Second Reading. What we want is a lively Committee stage in which the separate amendments can be voted on—a valuable gift to the Government, who can test what the opinion of the House really is without committing ourselves to any danger to the present Bill now on the statute book.
We have only an hour in hand and there are nine speakers on the list. I have spoken briefly myself—only six minutes—and if others will do the same, we need not frustrate the will of the House to resume with the rest of its business for the evening promptly at the end of the hour that we have been given. My Lords, I beg to move.
§ Moved, That the Bill be now read a second time.—(The Earl of Halsbury.)
§ 7.33 p.m.
§ The Lord Bishop of Ripon
My Lords, I am grateful to the noble Earl, Lord Halsbury, for his clear exposition of the Bill. I am a layman in matters medical and legal but it is clear, as the Warnock Committee said, that there are moral dimensions to the whole matter of surrogacy. At the same time it is difficult to discover just how those moral dimensions should be expressed. We live in a society where there are a variety of values, by no means all of them shared, and even within the Church there are sometimes differing viewpoints on a particular moral problem.
The noble Baroness, Lady Warnock, in her introduction to the report talked about the way in which we have to come to our morality by means of a sense of what is right or wrong. It is obvious, to me at any rate, that in considering this matter of surrogacy, and in particular in considering the clauses of the Bill before us, there is a fairly clear consensus.
I would not want to claim that that consensus extends to the total banning of surrogacy. Indeed, 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. The Warnock Committee did not believe that the practice of surrogacy should itself be outlawed, and I hope that whatever is put into law will leave a space for that kind of loving service that I have mentioned.
We are therefore considering not so much the morality of surrogacy but what it is right at the moment to enshrine in law. These two clauses which, as the noble Earl said, were both moved as amendments in the previous Bill come with wide support—the support of the Warnock Committee 577 itself, and the support of the working party of the General Synod of the Church of England. Warnock did not believe that surrogacy should be outlawed, although in the introduction it seems to be made clear that the members of the committee of inquiry believed surrogacy to be wrong. But the committee recommended that any arrangement should be illegal.
The present Bill surely has a more correct wording when it says that a surrogacy arrangement should be not illegal but rather void and unenforceable. It is also surely right in declaring that it is the bearing mother who is the legal mother. What has happened in the growth of medical technique is that it is now possible to separate our various aspects of parenthood. We can separate the genetic parent from the bearing mother, and the bearing mother from the social parents.
Within the Church, on the whole, the argument has been that the strong bonding lies between the bearing mother and the social mother—that is to say, the mother who bears should surely be the one regarded in law as mother. The more one lays weight on arguments which place relative strength on the bond between a bearing mother and a social mother and weaken the bond between the genetic and social mother, the more one is undermining the whole process of surrogacy.
There are, I believe, arguments which support the relative strength of the link between the bearing and social parent. There is the bonding to which I have already referred, and there is also the intimation that a women in offering her womb is somehow degrading her own body by offering the use of a uterus for the purpose of child bearing to a mother who will later become the social parent. There is the possible emotional damage, not to speak of possible physiological damage, to the bearing mother. There is damage which may be done to the child in the womb because the mother will not be bearing it as a child who is in due course to be her own. It may in the course of time be degrading to the dignity of the child to have known that in some way it was the result of some kind of contract.
With those arguments and the general kind of intimation that we have from a moral consensus, it is surely right that the mother who has already a parental relationship in bearing the child should also be the one who bears the legal status of motherhood. It is surely also right that if there is to be any handing over of a child it should be done by adoption.
There are two matters which were mentioned during the debate on the Surrogacy Arrangements Act which are not mentioned in this Bill. They are the outlawing of non-profit-making organisations, and the position of those professionals who may be involved in any surrogacy arrangements. I know that the right reverend Prelate the Bishop of Birmingham feels strongly on these matters. He is sorry that he is not able to be present in your Lordships' House this evening, but he hopes to be present at Committee stage and to speak to those two particular concerns.
Having mentioned those matters, I want to affirm my own support for this Bill, and to say that I believe that the clauses, as they stand, put into effect not only what we believe the law already to be but what we should like it to be.
§ 7.40 p.m.
§ Lord Meston
My Lords, in considering the Bill I suggest that it is necessary, first, to analyse what the 1985 Act already achieves and then to see what more this Bill seeks to do, and why. The 1985 Act, as it now is, cut out the commercial middleman, and quite rightly so. The reasons for thoroughly opposing any commercial third party element were well ventilated in your Lordships' debates both on the report of the committee chaired by the noble Baroness, Lady Warnock, and on the 1985 Bill, as it then was. The risk of exploitation by and of the parties involved are all too obvious. The 1985 Act as it stands is widely drawn. It catches arrangements with a promise or understanding of "any payment".
Thus it catches, or ought to catch, the nominal payment or the payment dressed up as expenses or otherwise disguised. It catches the bogus charitable donation. It catches the deferred payment made after some cosmetic interval. It catches the laundered payment made to a trustee on behalf of the parties involved. It even covers arrangements where payment is expected but does not actually arrive. The 1985 Act also deters overseas operators, because under Section 2 it catches any preparatory work carried out in the United Kingdom.
What, then, does the Bill do? It turns its attentions from the middlemen to catch the surrogate mother herself and the commissioning parent. It is one thing to say that arrangements are unenforceable and illegal in civil law. I entirely accept that it is desirable to codify the civil law in this respect, to confirm the existing case law and to supplement Section 85 of the Children Act 1975; but is another thing to say that those directly involved should be exposed to criminal prosecution. Is it really necessary to criminalise and penalise the infertile and the desperate? Discourage them, yes; but punish them, no.
I look at the Warnock Report at paragraph 8.19:We do not envisage that this legislation would render private persons entering into surrogacy arrangements liable to criminal prosecution, as we are anxious to avoid children being born to mothers subject to the taint of criminality. We nonetheless recognise that there will continue to be privately arranged surrogacy agreements".The very width of the range of payments in the 1985 Act, which is so useful to catch the profiteering middlemen, will also catch the essentially noncommercial private arrangements. For example, if the only money to pass is a contribution made by the commissioning parents towards the petrol expenses of the surrogate mother to ensure that she goes to the doctor or to the hospital, then there is a risk of a criminal prosecution under this Bill, subject only to the discretion of the Director of Public Prosecutions.
The criminal sanctions expose the parties not only to punishment but also to blackmail as between themselves and by third parties, such as the malicious neighbour who guesses what is going on. If the Bill goes any further I hope that there might be an attempt to distinguish payments which are genuinely compensatory rather than a reward. But the difficulty in formulating and proving such a distinction may be a reason for leaving the law as it is.
As the right reverend Prelate has said, the Bill will not exclude the truly unselfish surrogacy by a friend or 579 relation, particularly the fertile sister providing a child for the infertile. The Bill cannot prevent and may well encourage these activities to be driven underground, with all the squalor and deceit that that will involve, or driven abroad. Indeed, any effective prosecution may be difficult. It may become more difficult for the local authorities and for the courts concerned who have to pick up the pieces afterwards. They are concerned not with the criminality but with the welfare of the child. We should not under-estimate the lengths to which people are prepared to go.
Finally, the Bill should not close the door which the dissenting members of the Warnock Committee suggested should be left slightly ajar. That is a view shared by many responsible experts in the field. In this respect I look at the proposed new Section 2(5). It is not just aimed at the unpaid front man for the overseas operators: it is aimed at any group which may assist a surrogacy arrangement as part of its function.
I suggest that the door should be left open in exceptional cases for professional help and legal recognition for properly prepared and monitored and controlled arrangements by strictly licensed and qualified experts. These would have to be arrangements in which the rights and the duties of all involved are clearly defined and understood from the outset, and throughout. They would have to be arrangements in which the welfare of the resultant child would be the first consideration throughout. This would be a wanted child to enhance a family. I suggest that as the minority suggested these arrangements could be part of the range of options open to the experts. Indeed, they would provide some safety valve for the desperate parties involved from the unscrupulous operators who are already criminalised under the 1985 Act.
I hope that the Government will indicate today how they intend to pursue their wider response to the Warnock Report. I hope the Government will indicate whether they intend to implement a wider review of the law of legitimacy, which keenly touches upon this area of concern. This is an area for careful thought, not for dogmatic rhetoric. It is an area for tolerance, not emotion or criminality. The Bill may create as many problems as it solves. I ask your Lordships to consider it very carefully before it goes further.
§ 7.48 p.m.
§ Lord Swinfen
My Lords, I should like to welcome the Bill and give it my full support. I noticed that only last Saturday there was an announcement that Dr. Steptoe's fertility clinic is going into non-commercial surrogacy arrangements using sisters of barren potential mothers. I wonder whether this might not be carried further. I can see the possibility of the barren women's mother acting as a surrogate mother for her unfortunate daughter. If a woman has become barren later in life, possibly her own daughter could become a surrogate mother for her as a result of a second marriage. We could end up with very complicated relationships. What is the position if a disabled child were born? The problems grow considerably.
The main point in this debate is to move us on to the Committee stage, where we can discuss the Bill in detail. The noble Earl, Lord Halsbury, mentioned the amendment that I moved and then withdrew at the 580 Committee stage of the Surrogacy Arrangements Bill, concerning fines and penalties. I noticed in the Sunday Times the day before yesterday the report of a woman who had been recruited by an agency, not paid for being a surrogate mother but paid for keeping a diary of her pregnancy. There are many ways round the law.
The noble Lord, Lord Meston, if I understood him correctly, said that the law provided a catch-all situation. People could be caught by the law. That is not always easy to prove. I think, therefore, that all arrangements should be void.
I accept with pleasure the noble Lord's offer for me to include in his Bill, or to attempt to include in his Bill, at Committee stage, the sort of amendments that I moved last year; because at the moment I do not think the Act that is now in force has the necessary teeth. The level of fine, Scale 5, is only £2,000. There have been reports of women being paid as much as £20,000. This could quite easily go in as part of their costs, and they would still come out with a profit of well over £15,000, even taking into account all the costs of a nine-month pregnancy. The commercial agencies themselves will be making, I am certain, far bigger profits than £5,000. They will put up their charges just to cover it as an "in case". I welcome this Bill and wish it Godspeed.
§ 7.51 p.m.
§ The Earl of Cork and Orrery
My Lords, with this Bill we move from the purely practical financial measures dealt with in the earlier Act into a realm which may be described almost as abstract morality, which is an enormously difficult field into which either House of Parliament can imprint its foot. It is a morass and I think that the whole thing is a good deal less simple than perhaps the noble Earl, Lord Halsbury, would like to think that it is. I wish to ask one particular question. But before I do that, as a little more background, may I mention that we are already in a state of confusion even if it is only linguistic. I do not know where the idea of surrogate motherhood came from. I think it came from America. A surrogate is a substitute and, as has been pointed out by the noble Earl, Lord Halsbury, himself and, I think, by the right reverend Prelate who sits below me—and I say this in a strictly factual manner of speaking—the mother of a child is the woman who bore him. I do not subscribe to the practice of referring to a baby as "it", incidentally.
So that we have the mother who, almost before the Bill (any Bill), has begun its life, has become the surrogate mother; whereas, in fact, the substitute mother, the one to whom the baby will be handed over, should be the surrogate mother. She is referred to by the right reverend Prelate as the "social mother", sometimes as the "commissioning mother" and sometimes as—I know not what; there are several things. The whole matter is already in a state of confusion. I think it is getting worse; I am afraid that it is.
This Bill now provides that there should be no legal standing for any agreement made for surrogacy. That is perfectly all right. But it applies to everybody: the two mothers, the father, anybody else you care to think of. But the practice will not stop. Nobody has pretended that it ever will. It has probably gone on 581 since the beginning of childbearing, for all I know, and will continue here and there. So that all we have is a deterrent, and one of the deterrents that is offered to us in this Bill is in Clause 2, which says: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".That is perfectly logical; because, although we are talking about the surrogate mother, the clause in fact refers to her as "that mother", so that the confusion comes back at every turn.
But supposing that when this baby is born, or even before it is born and after it has been conceived—and I have fallen into my own trap and used the word "it", for which I apologise; so let me say, before he or she was born—the receiver, the mother, the surrogate mother, the social mother decides that she does not want to receive this baby and refuses to accept it. What can she do? She can hand the baby back to the so-called surrogate mother who is bound in law to admit that she is the legal mother of that child. But she, we can almost say by definition, does not want him. So here, under the auspices of this legislation, we have brought a baby into this world who will not be wanted by anybody at all and will go straight into care.
The question that I want to ask your Lordships is this. I ask it of the noble Earl, Lord Halsbury, of my noble friend the Minister, of all your Lordships and, perhaps if the Bill gets a Second Reading, of the whole House in Committee later on. Is it right to pass into law a clause which will in some cases—they will not be very common but they will occur, I am certain—make it absolutely certain that a baby is going to be born who will have to be taken away and put into care, no matter what happens?
The central figure in this Bill and in the former Bill—whoever else may think that it is the unfortunate parents who cannot beget or bear a child—I believe is the child. I do not care for the idea of bringing a child into the world, or legislating for it to be brought into the world, and actually preventing it from having any human relationship at all and condemning it to go straight into care. My Lords, the question is this: What do you think about it?
§ 7.58 p.m.
§ Lord Denning
My Lords, in this Bill we seek to implement the recommendations of the Warnock Report. When the previous Bill was before a Committee of your Lordships I proposed a number of amendments. We did not proceed with them because we were so anxious not to delay the passing of the principal Bill. But now they come before your Lordships in the form of this supplemental Bill. I think that the easiest and best way to explain the position to your Lordships is to take a case which actually came before the courts. It came before the courts in 1978. It was not reported in any law report until 1985, and then only in the family law reports not available in this House. But it gives an illustration of exactly what happened.
A man, a bachelor aged 27, was about to marry a woman aged 39, but the man was anxious to have a baby of his own, a child of his own, although his wife could not bear one. What happened? They went, if you please, to Bow Street. They went along the line of 582 prostitutes who were coming up before the magistrates to be fined and they asked one of the women there about the possibility of what would be a surrogate mother. "Oh," she said, "not me! I won't do it. But if you've got £500 I can introduce to you a girl who would, one who is sort of mixed up with us". She introduced a girl of 19 years of age. Then she had to be taken to a clinic and when this girl of 19 went to the clinic the man, no doubt, masturbated and his semen was extracted from him by a doctor from the clinic. He inseminated the girl of 19 with this man's sperm.
There it was. The baby was conceived. I ought to have said that a sum of £3,000 was to be paid for this. But during the pregnancy the mother, the carrying mother, changed her mind, as so often happens. The carrying mother said that it was her child and that when it was born she wanted to have her child. She did not want to hand it over to the commissioning mother or do anything of that kind, or to the man who provided the semen.
They insisted that they wanted to get the child; in fact, they offered money in order to get the child and they had her for a few days. The case came before the courts and the courts held—and this is surely right—that this agreement was void and unenforceable. Just imagine: could the commissioning mother sue the carrying mother because she wanted to keep her own child? Or if the carrying mother wanted money from the commissioning mother, could she sue for the money? No, my Lords, that is quite impossible; and the courts held that such an agreement was void and unenforceable.
But then, who was the parent of the child? The only conceivable parent of the child was the mother herself—the girl of 19. The man who provided the semen was not the father: he had not gone through the necessary machinery. It was the doctor, if you please, who put the semen into the woman's body. So it is quite plain that the carrying mother was in law the mother; and when the commissioning father wanted access to the child the Court of Appeal said, "No, what has happened is disgraceful conduct". They asked who was the doctor who went forward and performed this disgraceful operation.
The Court of Appeal held that the baby belonged to the carrying mother and that the so-called father had no rights whatever in the child. There is the Children's Act which says the like; and therefore the mother could bring up her own child. Fortunately, in a way, the court envisaged that she might marry, have a husband and bring up this child with him. That is an illustration and from it I ask your Lordships to affirm as law the two principal clauses here.
Mark you, it is only when it is done on a commercial basis, but these two principles apply more generally. The first is:Any arrangement which is a surrogacy arrangement is void and unenforceable whether made with a view to payment or not".That is quite general. Secondly: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".That, as I understand it, is the law at the moment and it is most important that it should be made clear for the future.
583 Then comes the question: what about the doctors or the intermediaries who arrange it all—the people at the clinic and so on? On that, the Warnock Committee made it quite clear, and perhaps I may read what they said in paragraph 8.18: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".Then in black, heavy type follows: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 clear recommendation of the Warnock Committee which has been brought into this Bill. I hope it will be implemented, because the doctor who plays such an important part if he is doing it on a commercial basis, a clinic if it is doing it on a commercial basis and those who are receiving payment or the like for it are all parties to this unlawful and undesirable arrangement.
The only qualification which was in the last Bill was: what about the surrogate mother herself? Or what about the man who provides the sperm? According to the Bill as it was when introduced by the Government on the last occasion, they are to go free. The Warnock Report indicated, and indeed the noble Baroness, Lady Warnock, herself indicated that their fear was that they did not want the child to be tainted with illegality. My Lords, the child will never be so tainted. Surely the doctor who performs for a fee—it may be a large fee—or the clinic ought not to go free; or the man such as the one I have described—and incidentally, in the case I referred to, the man was most undesirable, because when he did not get the child he wanted to tell his story to the press. That is the kind of man he was. Is that kind of man to go free?
Whether the mother is to be pitied or whether the man who donated the sperm is to be pitied, they should be given a nominal sentence or let off with a caution or whatever it may be: they would not even be punished. As to the taint of criminality, what about the man who seduces a girl of under 16? He is guilty of a criminal offence. A child is born: is that child tainted with criminality? Surely not. So the argument about the child being tainted with illegality or criminality really does not work, it seems to me. In other words, I ask your Lordships to endorse the Warnock Report and the recommendations which I have mentioned. If there is doubt or difficulty about it, then of course we can discuss that at Committee stage. I hope that your Lordships will give this Bill a Second Reading.
§ 8.8 p.m.
§ Lord Somers
My Lords, I apologise for not having put my name on the list, but I want to say just one word about something that was said by the noble Earl, Lord Cork and Orrery. I listened with great respect to what he had to say. He drew a picture of a child which when born turned out not to be wanted either by the 584 true mother (the surrogate mother) or the commissioning mother, and as a result became an unwanted child. Has that not been the case hundreds of thousands of times with perfectly normally married parents? One has only to look at Dr. Barnado's to see the result.
I cannot feel that this Bill is going to make things any worse in that way. It is a sad fact that many perfectly normally married parents are utterly lacking in responsibility so far as their own children are concerned. Therefore I feel that this Bill is not going to alter that in the slightest, and I support it thoroughly. I sincerely hope that your Lordships will do the same.
§ 8.9 p.m.
§ Lord Ennals
My Lords, I am sure the House will be grateful to the noble Earl, Lord Halsbury, for presenting a Bill which enables this extremely important subject to be aired once again, particularly when Mr. Steptoe and Dr. Robert Edwards of Bourne Hall Clinic in Cambridge have so recently announced new and, I suspect, controversial plans to produce surrogate babies at their clinic.
Let me emphasise straightaway that anything I say in relation to this whole subject is my personal view and does not commit any noble Lords on these Benches.
§ Lord Ennals
I have not said anything yet, my Lords. Let us remember that the original Bill, which went quite quickly through the House in July last year, did not take a position on the principles or practices of surrogacy. It outlawed commercial surrogacy agencies, in my view absolutely rightly.
In our first debate on the report of the Committee chaired by the noble Baroness, Lady Warnock, I made my position clear—that in most respects I supported the recommendations. I do not tie myself to all of them. It would be silly to do so. I warmly support Clause 2 of the Bill, which puts beyond dispute the legal status of the child following a surrogacy arrangement. The point made by the noble and learned Lord, Lord Denning, is absolutely right. There can and should be no doubt—if there is doubt legislation should clarify the point—that the child is the child of the mother who bore it. That clarification is absolutely in line with the Warnock recommendations.
On the other hand, I must say that I am not happy about Clause 1 and Schedule 2. It seems to me—I may have it wrong; I am not a lawyer—to imply opposition to surrogacy under any circumstances. It would deny a surrogate mother any entitlement to payment for expenses or loss of wages which she incurred. If one looks at Schedule 2, one sees that much of it was in the original Act. It provides:(1) No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—Then, the new paragraph (d) provides:
- (a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,
- (b) offer or agree to negotiate the making of a surrogacy arrangement".(d) assist or take part in the establishment of a pregnancy knowing that it is in pursuance of a surrogacy arrangement;585 Perhaps I may commend the words of my noble friend Lord Prys-Davies in the debate in your Lordships' Committee on 28th June 1985. He said:it would be wiser to wait to see what view the Government take about the role of voluntary surrogacy as an act that can cement a marriage and support a family. I should be extremely cautious before asking the Committee to support the amendment as drawn".—[Official Report, 28/6/85; col. 924.]The point was made, perhaps almost prophetically, by the noble Earl, Lord Caithness, when he said in the same debate: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".The noble Earl continued:It may not be in the child's best interests if agreed maintenance costs are withheld at some stage during the pregnancy".—[Official Report, 28/6/85; col. 926.]When we look at Clause 1 of the Bill and the schedule, we must look very carefully at the implications of what is being proposed.
The words of the noble Earl, Lord Caithness, pointed prophetically, as I said, to what is now proposed by Mr. Steptoe and Dr. Robert Edwards. Their plans involve the wife's eggs and her husband's sperm. That means an embryo implanted in another woman's womb, but entirely the product of the couple who want the child. They have said that the woman would most likely be a friend or relative. As I said, the baby would be entirely the product of the couple who were unable, literally, to give birth to their own baby.
In our original debate, I said that I had a great deal of sympathy with, and some long experience of, couples who, I believe, would be extremely good parents and who desperately want to have children. There is no God-given or law-given right to have a child, but it is a natural result of marriage. Where that is not possible, it seems to me that if a modern science, properly and effectively controlled, can enable a loving couple to have a child that they know is their own and which comes in no way from the physical product of some other couple, that is something to be desired.
I congratulate Mr. Steptoe and Dr. Edwards on their developments and concern. I have such concern for the tragedy of infertility in such loving couples that I can only welcome what Mr. Steptoe and Dr. Edwards are doing at Bourne Hall. I hope that in Committee we can delete or amend Clause 1. It may be that I have extended the Bill's intention beyond that of the noble Earl, Lord Halsbury. That we can discover in Committee.
I do not want to stand in the way of the remarkable progress that has been made by Mr. Patrick Steptoe and Dr. Robert Edwards. I believe from my knowledge of them that they seek no personal gain—although they are doctors and they need to be paid—but that they share a wish that I believe many of your Lordships have: a wish to ensure that loving couples can have children of their own.
§ 8.17 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington)
My Lords, I am sure that you would wish me to thank the noble Earl, Lord Halsbury, on behalf of the whole House for presenting his Bill. It will allow us a further opportunity to debate fully the many complex issues which the practice of surrogacy present us with. The noble Earl has, as always, presented his arguments with clarity, brevity and eloquence. I shall try to follow his example, at least with regard to clarity, and brevity, in commenting on some of the points which he has made.
The practice of surrogacy is not new. Speaking in the Third Reading debate on the Surrogacy Arrangements Act, the right reverend Prelate the Bishop of Ripon said that one could argue that a form of surrogacy took place in the arrangements between Abraham and his slave, in view of the barrenness of Sarah. I cannot claim that the Government's concern dates back to biblical times, but we have been aware for many years of the concern felt by large numbers of people about the practice. The development of the techniques of artificial insemination by donor and in vitro fertilisation led some to fear that there would be an increase in the number of surrogate pregnancies. This they saw as an unintended and unfortunate side effect of developments in medical science. Concern about such issues was one of the reasons which led the Government to set up the Warnock Committee in 1982 to look at the whole range of recent developments in the treatment of infertility.
As this is the first time that I have spoken on these matters in this House, perhaps I should put on record my belated thanks to the noble Baroness, Lady Warnock, and her committee for their very important work in this field. I believe that, on the question of surrogacy, they have helped to promote a very constructive public debate of the issues, although unanimity has not yet been achieved. A large number of organisations and individuals submitted evidence to the Warnock Committee, and even larger numbers responded during our consultation exercise on its recommendations. I believe that the exercise of gathering evidence and consulting on recommendations helped to develop public knowledge of the issues involved. This was of immense assistance in allowing us to see where concern was most urgently and unanimously felt, and it allowed us to move very quickly to legislate in the Surrogacy Arrangements Act to meet these concerns.
I will say a few words about the Act and what it entails. The Act has comprehensively tackled the prohibition of commercial surrogacy agencies, by defining the activities in relation to surrogacy which are prohibited if done on a commercial basis. It also deals with the question of advertising and has made it an offence to advertise surrogacy services, irrespective of whether the advertisement is placed by an agency, commissioning parents or by a surrogate mother herself. All the main forms of advertising in this country, in newspapers, periodicals or broadcasting media, are covered by this provision. This prohibition is designed to ensure that the first steps towards the kind of commercial activity which the Act as a whole is designed to prohibit do not occur as a result of advertising.
587 I would like to remind your Lordships of the overwhelming support which this measure received. Rarely can legislation in such a morally sensitive field have been passed so quickly and with such general support. I am grateful to your Lordships for the role which you played in helping it to be enacted. In steering it through last year, we stressed that it was only a limited measure, in that it did not deal with all the matters which Warnock suggested needed legislation, either on surrogacy or on the other matters with which Warnock dealt. However, beyond the very narrow boundaries of the Act, it is difficult to see other areas in these matters where a similar degree of unity exists.
In looking at the response to the consultation on the report, I am constantly struck by both the diversity of views expressed and by the depth of feeling with which they are held. This evening the noble Lord, Lord Ennals, and my noble friend Lord Cork and Orrery, both giving personal deeply held views, are examples yet again of what I mean. We should, perhaps, not be surprised at this, given the nature of the issues involved. But we should also not underestimate the difficulties which are presented when we seek adequately to take account of all viewpoints.
What I have said about diversity of opinions certainly applies to the subject of surrogacy. Not all members of the Warnock Committee felt able to support its recommendations, and as the noble Baroness, Lady Warnock, pointed out in her preface to the report, in this disagreement they 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. It is possible, on the other hand, 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. Recent press reports show, as my noble friend Lord Swinfen appreciates, that surrogacy remains a topic of considerable interest and sensitivity. My remarks are made merely to mirror all shades of public opinion.
The Government are currently considering all the issues related to surrogacy and the others covered by the Warnock Report. I would say to the noble Lord, Lord Meston, that we shall try to take all these views into account in deciding on future action. But as I hope I have indicated, and as he realises, this is no easy task given the diversity of opinion which exists. The noble Lord, Lord Meston, mentioned the question of a review of the law on legitimacy. This is, of course, a matter for my noble and learned friend the Lord Chancellor. The Warnock Report recommended that AID children should be legitimised, as the Law Commission recommended. This whole question is being looked at.
Until, therefore, we have determined what we intend to do about the matters dealt with by the Warnock Report, our stance to this Bill has perforce to be a neutral one. Having said that, may I say how grateful I am to the noble Earl, Lord Halsbury, for having made his intentions about the need to extend the legislation enacted last year very clear and I appreciate the forbearance of the noble and learned 588 Lord, Lord Denning, during the passage of the Surrogacy Arrangements Act.
I do not intend to speak in detail tonight about the effect of this Bill. Its provisions range from seemingly straightforward clarifications of the law to extensions of the controls to be placed on surrogacy which go further than the Warnock Report recommended. I am sure that the noble Earl would not expect me to give him a blanket acceptance of the various points which his Bill covers, although some of them might in essence command a good measure of acceptance.
I can, however, reassure him that we shall pay very close attention not just to the debate on this Bill, but also to the points which the Bill seeks to achieve in our consideration of the response to the Warnock Report. However, I cannot, even if I look into my crystal ball, forecast either the timing or content of any legislation of this kind. While I cannot give any view on the prospects for a Bill, I am certainly glad to offer the noble Earl an assurance that the points he and other noble Lords have put forward will be looked at very carefully indeed when we come to look at the content of any future Government Bill which will deal with the matters such as these on a wider basis.
As I have said, we are neutral to this Bill, so while I fear that the noble Earl, Lord Halsbury, may find my words unsatisfactory, I hope he may gain a crumb of comfort from the fact that the Government will take very careful note of what has been said this evening; and I am sure that in deciding on our future course of action we shall have been considerably helped by this debate.
§ 8.26 p.m.
The Earl of Halsbury
My Lords, may I, in winding up, thank your Lordships for the generally sympathetic view that has been expressed from all sides of the House towards this Bill. May I say that of course the noble Lord, Lord Meston, the noble Lord, Lord Ennals, the noble Baroness, Lady Trumpington, and anybody else who is a Member of your Lordships' House, is perfectly free to put down amendments at the Committee stage which would have the effect of altering the character of this Bill and the precise provisions contained in it.
I ought perhaps to remind your Lordships that, though I spoke at Second Reading last summer on the Government's Bill, for private reasons I was unable to participate in the Committee stage. So nobody knows exactly what was my own view on some of the amendments of the noble and learned Lord, Lord Denning, at that time.
If I may just pause to deal with one or two points made in the debate, the noble Lord, Lord Swinfen, will of course put down further amendments himself and I will give him any help I can on that. He mentioned the question of the diary. This story came into my ken, as it were, after the Bill had been drafted and I must take legal advice between now and Committee stage as to whether or not the Bill does in fact legislate for this mischief.
The noble Earl, Lord Cork and Orrery, and I both share dubiety on the subject of surrogacy. At Second Reading of the Act, I said:One last point concerns the Long Title of the Bill, which refers to surrogate motherhood. I think that this is a most ambiguous term. A surrogate is a substitute"—589 this was the noble Earl's point.You cannot have a substitute for a mother—on one definition of the word 'mother'. The term we need—I am just coining a new scientific term—is allogenetic pregnancy; that is to say, pregnancy resulting from a genetic make-up that is not the make-up of the pregnant woman".—[Official Report, 14/6/85; cols. 1528–9.]That term has not caught on, but I will not trouble your Lordships with it any further because our hour is up.
The noble Earl, Lord Cork and Orrery, asked me a straight question: is it right to pass into law permission to bring a child into the world having no relation to anyone at all? My answer to that, quite simply, would be no, I do not think it is. The noble Baroness, Lady Trumpington—and I must thank her for her sympathetic attitude to my Bill—referred to the great diversity of opinion. When we have diversity of opinion in a democracy we simply put it to the vote. We cannot suspend decision indefinitely because there is a diversity of opinion about which decision should be taken. We put it to the vote. That is the service which I hope I have rendered to your Lordships' House by this Second Reading. It gives noble Lords an opportunity to table amendments and to vote on them knowing that they cannot damage the Act now on the statute book whichever way the vote goes. With those remarks, I shall resume my seat. I should like to thank everybody for having dealt with the matter within the hour.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 8.31 to 8.35 p.m.]