HL Deb 21 May 1986 vol 475 cc363-9

7.30 p.m.

Report received.

Clause 1 (Surrogacy arrangements to be void):

Lord Simon of Glaisdale 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: My Lords, I beg to move Amendment No. 1. This is the same amendment as was moved at the Committee stage by my noble and learned friend Lord Denning. It makes surrogacy arrangements illegal and unlawful, and not merely void and unenforceable. My noble friend Lord Halsbury was kind enough to say that anything that my noble and learned friend suggested was agreeable to him. Those were not his words, and nor would I hold him to them if they were. However, at any rate he viewed the amendment benevolently.

The noble Lord, Lord Ennals, is obviously less than fully enchanted with this Bill, but I do not think that he would have an objection to a legal technical amendment if it might be an improvement, as I venture to think this is. The noble Baroness. Lady Trumpington, quite rightly pointed out that, as the clause stands at present, unamended, it is probably unnecessary. It probably does no more than declare the existing law on the breach of a surrogacy arrangement; in other words, that such an arrangement is unenforceable. However, I have a feeling that the noble Baroness may have left the impression that the amendment itself was without any real practical effect. I think that it was probably on that basis that my noble and learned friend Lord Denning withdrew the amendment.

I was not altogether happy with that result, and I wanted to bring it back to your Lordships to get your Lordships' decision on the matter. The law draws a number of distinctions between an agreement which is void and unenforceable, on the one hand, and an agreement which is unlawful, on the other. So far as this amendment is concerned, the only relevant difference relates to the recovery of money that might be paid as part payment under a surrogacy arrangement. My noble and learned friend Lord Denning, with his matchless capacity for lucid exposition of legal principles, explained the point in Committee, so I shall merely summarise the two leading cases, one on each side, which illustrate the difference between the two conceptions of "unlawful" and "unenforceable".

On the one hand, there was the prostitute who hired a carriage in order that she could publicly display her charms with a view to custom, and she paid a sum for the hire of that carriage. The hirers then repented of the bargain and called it off, and the prostitute tried to recover the money that she had paid in advance. Such an agreement is an illegal agreement, and it was held that she could not therefore recover the money that she had paid. That is one case.

The other case is the marriage-broking contract, where a woman paid a marriage broker a deposit, an advance payement, in consideration of him finding her a husband, the balance to be paid when the husband was found and the marriage took place. In fact, that agreement came to nothing and the woman then tried to recover the advance payment that she had made. It was held that she could do so because a marriagebroking contract is unenforceable but is not unlawful.

Applying that to a surrogacy agreement, my noble and learned friend gave a number of examples, as indeed are given in the Warnock Report and as were given by my noble friend Lord Halsbury. However, a very typical one would be as follows. Mrs. A enters into an agreement with Miss B that Miss B shall bear a child to be handed over to Mrs. A. She pays, say, £1,000 in advance, the balance of, say, another £1,000 to be paid when the child is handed over. As has so frequently happened, Miss B repents of the bargain once she has borne the child. The question then arises: can Mrs. A recover from Miss B the £1,000 that she has paid in advance?

If the agreement is unenforceable, as it is under the Bill as it stands, she can recover because the case is similar to the marriage-broking contract. However, if it is an unlawful agreement Mrs. A cannot recover the £1,000 paid in advance because it is an unlawful agreement, like the hire of the prostitute's carriage. In my respectful submission it would be wrong to allow the recovery of the sum paid in advance. After all, Miss B had been persuaded to go through all the discomfort and nausea of bearing the child, and it would seem to be utterly wrong, even if she has repented of the bargain, that she should now be forced to reimburse Mrs. A for the money paid in advance, most of which one would have thought had probably been expended during the pregnancy and the confinement.

The point is: is the advance payment to be recoverable? In my respectful submission the answer is "No", and this amendment has that effect. The noble Baroness was quite correct in saying that as the Bill is framed at the moment it has no further effect than the present law. However, this amendment is an important one. It has that material effect which I have ventured to lay before your Lordships, and therefore I beg to move.

Lord Ennals

My Lords, the noble and learned Lord, Lord Simon of Glaisdale, was kind enough to mention my name. I want just briefly to state the position that I hold. It is a personal position, and of course this is not an issue on which one is speaking on behalf of one's party. He is right—and I congratulate him—that he is making this clause clearer, but in fact to me it makes it more unacceptable.

I have two objections to what is intended by this part of the Bill, as I said on Second Reading. First, I do not believe that we are at a stage in our thinking when we should declare unlawful any particular act of surrogacy, because I do not believe that it is necessarily wrong. I do not want to see the door at this stage totally closed, which would be the consequence of the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale.

Secondly, as I said on Second Reading, it is my view that in your Lordships' House, or in another place, we shall receive a Bill from this Government or the next which will seek to implement the recommendations of the Warnock Committee, or to implement part of them; or at least a major Bill which will be commensurate with the major report which has come to be known as the Warnock Report. I am not in favour of Bills like this which deal with small aspects of what is an extremely important problem and issue.

Having said that I recognise that this improves the Bill, if that is the purpose of the amendment, I have to say that I do not agree with it, and I promise noble Lords that on any further amendments today at Report stage I shall not intervene. But I think I should at Third Reading set out with perhaps greater clarity and greater preparation the reasons why I think we should be unwise to proceed with this measure.

Lord Winstanley

My Lords, just for the sake of clarity and for the record may I make it clear that for once—I shall not say only for once—the position of the Front Bench spokesman on these Benches is precisely the same as that of the noble Lord, Lord Ennals, the Front Bench spokesman on the Official Opposition Benches? I leave it at that. I agreed with every word he said.

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

My Lords, having heard the noble and learned Lord, Lord Simon of Glaisdale, this evening it is my sincere wish to clear up any misunderstanding and to restate the Government's position. Of course I understand the noble and learned Lord's wish to see this amendment made to the Bill to make clear beyond doubt that no payments made in respect of a surrogacy contract can ever be recovered.

I had intended to convey that the Government's attitude to the provision in Clause 1 which this amendment seeks to tighten up was that the provision itself was probably unnecessary because my legal advice is that agreements to hand over a child are already unenforceable by virtue of Section 85(2) of the Children Act 1985. As the noble and learned Lord has made very clear, there is a real difference between making contracts void and unenforceable, as Clause 1 of the Bill seeks to do, and unlawful, as this amendment proposes. Making surrogacy contracts unlawful has the effect of making any payments which may have been made irrevocable.

Although the Government are neutral both to Clause 1 and the amendment to it, I should like to point out what some of the consequences of this amendment would be. It would, for example, prevent the surrogate mother entering into an agreement with the commissioning parents for payment of the expenses or loss of income she had incurred during the pregnancy when they had changed their minds about the arrangement. Equally, it would in all circumstances prevent the commissioning parents recovering sums from the surrogate mother if the latter decided to keep the child. I am sure the circumstances in which successful actions for recovery could be brought would be rare, but the House ought to think carefully before it removes that possibility, however remote.

With regard to the noble and learned Lord's example of Miss A and Miss B, I was fascinated listening to his exposition of the need to make provision in the Bill to prevent the recovery of advance payments. We shall have to consider this argument carefully, but the amendment, I submit, cuts both ways.

7.45 p.m.

The Earl of Halsbury

My Lords, if the noble Baroness sticks to her attitude of benevolent neutrality on these matters, who am I to adopt a different posture? Personally I should like to strengthen the Bill, and I know that I speak for those who would like to strengthen the Bill. I know that the noble Lord, Lord Ennals, takes a different view of the situation from the view I take. He will have a full opportunity to divide against the Bill at Third Reading, or on the Motion that the Bill do now pass.

I hope that this Report stage can go through without a Division as the hour is late and the House is thin. If my noble and learned friend Lord Simon of Glaisdale wants to stick to his amendment, I hope that the noble Lord, Lord Ennals, will pick up the gauntlet at Report stage.

Lord Simon of Glaisdale

My Lords, I have moved the amendment already. If I left that unclear, I repeat that I beg to move the amendment. As I am on my feet, I ask your Lordships' leave to speak again to thank those of your Lordships who have spoken in this debate. Even though I know that the two noble Lords on my right do not like the Bill generally, I am grateful to them for saying that they will not disapprove of a provision which makes the Bill clearer.

On Question, amendment agreed to.

Clause 3 [Amendment of the Surrogacy Arrangements Act 1985]:

Lord Swinfen moved Amendment No. 1A: Page 1, line 12, leave out ("and 2") and insert (", 2 and 4").

The noble Lord said: My Lords, this is a drafting amendment which is consequential on the House having accepted my Amendment No. 10 at Committee stage. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Amendments to the Surrogacy Arrangements Act 1985]:

Lord Swinfen moved Amendment No. 2:

Page 3, line 11, at end insert— (" . In section 4 of that Act ("offences") after subsection (1) insert— (1A) If it appears to the Secretary of State that there has been a change in the value of money since the last occasion when the sum specified in paragraph (a) above was fixed, he may by order substitute for that sum for the time being specified in that provision such other sum as appears to him justified by the change. (1B) An order made under subsection (1A) above—

  1. (a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and
  2. (b) shall not affect the punishment for an offence committed before that order comes into force.".").

The noble Lord said: My Lords, this is not a drafting amendment. At Commitee stage your Lordships were good enough to allow me to amend the Bill to change the penalty from Level 5 to £20,000. There is a useful method whereby the levels can be altered in line with inflation as necessary from time to time. If we do not put this amendment into the Bill, once the Bill has become law, to amend the penalty either upwards or downwards would need fresh legislation which could take up considerable time in both Houses of Parliament.

This amendment would allow the Secretary of State, if he saw fit, to lay before the House an order which the House would have to approve—and indeed the other place as well—so that there could be any necessary change in the size of fines which may at some time in the future be made ridiculously low if inflation were to gallop away again, or in many years' time if inflation goes on at a nice slow rate such as that at which it is now moving as compared with two years ago. I beg to move.

The Earl of Halsbury

My Lords, as the promoter of this Bill I should be happy to accept this amendment unless I am advised by the noble Baroness who is speaking for the Government that she sees an objection to it.

On Question, amendment agreed to.

Schedule 2 [Sections 1 and 2 of the Surrogacy Arrangements Act 1985, as amended by this Act]:

The Earl of Halsbury moved Amendment No. 3: Page 4, line 27, after ("it") insert (", or in respect of any other act performed by him in relation to the surrogacy arrangement,").

The noble Earl said: My Lords, by leave of the House, I should like to speak also to Amendments Nos. 4, 5, 6 and 7 in moving this amendment, Amendment No. 3. They are all consequential upon the Committee stage preceding this Report stage. Amendments Nos. 3 and 4 are consequential upon the Committee stage Amendment No. 8, and Amendments Nos. 5, 6 and 7 are consequential upon Amendment No. 9 at the Committee stage. As I explained at Second Reading, the Keeling Schedule (that is, Schedule 2) merely fills in the Bill for when it becomes an Act. This is merely to amend the appearance of the Bill in Schedule 2 by incorporating what your Lordships have already agreed at the Committee stage. I beg to move.

On Question, amendment agreed to.

The Earl of Halsbury moved Amendments Nos. 4 to 7:

Page 4, line 30, at end insert ("or in respect of any other Act performed by him in relation to the surrogacy arrangement.").

Page 4, line 35, at end insert (", or in respect of any other act performed by him in relation to the surrogacy arrangement.").

Page 4, line 40, after ("act") insert (", or in respect of any other act performed by him in relation to the surrogacy arrangement,").

Page 4, line 42, at end insert ("or in respect of any other act performed by him in relation to the surrogacy arrangement.").

The noble Earl said: My Lords, I beg to move these amendments en bloc.

On Question, amendments agreed to.

Lord Swinfen moved Amendment No. 8:

Page 6, line 7, at end insert—

("Offences. 4.—(1) A person guilty of an offence under this Act shall be liable on summary conviction—

  1. (a) in the case of an offence under section 2 to a fine not exceeding £20,000 or to imprisonment for a term not exceeding 3 months or both;
  2. (b) in the case of an offence under section 3 to a fine not exceeding level 5 on the standard scale.
In this subsection "the standard scale" has the meaning given by section 75 of the Criminal Justice Act 1982.").

The noble Lord said: My Lords, this amendment is also consequential upon the amendment passed at Committee stage and is again an amendment to the Keeling Schedule. I beg to move.

On Question, amendment agreed to.

Lord Swinfen moved amendment No. 9:

Page 6, line 7, at end insert— ("1A) If it appears to the Secretary of State that there has been a change in the value of money since the last occasion when the sum specified in paragraph (a) above was fixed, he may by order substitute for that sum for the time being specified in that provision such other sum as appears to him justified by the change. (1B) An order made under subsection (1A) above—

  1. (a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and
  2. (b) shall not affect the punishment for an offence committed before that order comes into force.".").

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 2, which the House has just accepted. I beg to move.

On Question, amendment agreed to.

Lord Swinfen moved Amendment No. 10:

Page 6, line 7, at end insert— ("(2) No proceedings for an offence under this Act shall be instituted—

  1. (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; and
  2. (b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
(3) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly. (4) Where the affairs of a body corporate are managed by its members, subsection (3) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate. (5) In any proceedings for an offence under section 2 of this Act, proof of things done or of words written, spoken or published (whether or not in the presence of any party to the proceedings) by any person taking part in the management or control of a body of persons or of any of the activities of the body, or by any person doing any of the acts mentioned in subsection (1)(a) to (c) of that section on behalf of the body, shall be admissible as evidence of the activities of the body. (6) In relation to an offence under this Act, section 127(1) of the Magistrates' Courts Act 1980 (information must be laid within six months of commission of offence), section 331(1) of the Criminal Procedure (Scotland) Act 1975 (proceedings must be commenced within that time) and Article 19(1) of the Magistrates' Courts (Northern Ireland) Order 1981 (complaint must be made within that time) shall have effect as if for the reference to six months there were substituted a reference to two years.").

The noble Lord said: My Lords, this, again, is an addition to the Keeling Schedule which makes the rewrite of the original Bill clear to anyone who needs to read it. I beg to move.

On Question, amendment agreed to.