§ 12 After Clause 29, insert the following new clause:
§ Parental orders in favour of gamete donors
§ '(1) The court may make an order providing for a child to be treated in law as the child of the parties to a marriage (referred to in this section as "the husband" and "the wife") if—
- (a) the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
- (b) the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo, and
- (c) the conditions in subsections (2) to (7) below are satisfied.
§ (2) The husband and the wife must apply for the order within six months of the birth of the child or, in the case of a child born before the coming into force of this Act, within six months of such coming into force.
§ (3) At the time of the application and of the making of the order—
- (a) the child's home must be with the husband and the wife, and
- (b) the husband or the wife, or both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.
§ (4) At the time of the making of the order both the husband and the wife must have attained the age of eighteen.
§ (5) The court must be satisfied that both the father of the child (including a person who is the father by virtue of section 28 of this Act), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
§ (6) Subsection (5) above does not require the agreement of a person who cannot be found or is incapable of giving agreement and the agreement of the woman who carried the child is ineffective for the purposes of that subsection if given by her less than six weeks after the child's birth.
§ (7) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—
- (a) the making of the order,
- (b) any agreement required by subsection (5) above,
- (c) the handing over of the child to the husband and the wife, or
- (d) the making of any arrangements with a view to the making of the order,
§ (8) For the purposes of an application under this section—
- (a) in relation to England and Wales, section 92(7) to (10) of, and Part I of Schedule 11 to, the Children Act 1989 (jurisdiction of courts) shall apply for the purposes of this section to determine the meaning of "the court" as they apply for the purposes of that Act and proceedings on the application shall be "family proceedings" for the purposes of that Act,
- (b) in relation to Scotland, "the court" means the Court of Session or the sheriff court of the sheriffdom within which the child is, and
- (c) in relation to Northern Ireland, "the court" means the High Court or any county court within whose division the child is.
§ (9) Regulations may provide.
- (a) for any provision of the enactments about adoption to have effect, with such modifications (if any) as may be specified in the regulations, in relation to
1115 orders under this section, and applications for such orders, as it has effect in relation to adoption, and applications for adoption orders, and
- (b) for references in any enactment to adoption, an adopted child or an adoptive relationship to be read (respectively) as references to the effect of an order under this section, a child to whom such an order applies and a relationship arising by virtue of the enactments about adoption, as applied by the regulations, and for similar expressions in connection with adoption to be read accordingly,
§ (11) Subsection (1)(a) above applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.'.
§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. This is perhaps a more substantial amendment than some of the others with which I have been dealing.
The amendment was introduced in another place in response to an undertaking given in Committee by my right honourable and learned friend the Solicitor-General to address circumstances where a carrying mother wants the child to whom she has given birth to go to a married couple of whom one, or both, are the genetic parents of the child. I believe the amendment meets the concerns which have been expressed on this point during the passage of the Bill.
We are thinking here of a situation where a woman has agreed to carry a child for a wife who cannot carry, or perhaps cannot conceive, a child of her own. Such an arrangement may involve, for example, in vitro fertilisation, or artificial insemination with the sperm of the husband of a woman who is infertile. Sections 27 and 28 provide that the carrying mother, and her husband—if she has one, and if he cannot prove that he has not consented to the embryo transfer or the insemination—will be the child's legal mother and father. It would be quite wrong to interfere with or undermine that principle. However, we must face the fact that occasionally those who have become legal parents in this way have done so without any intention of accepting responsibility for the child once born. They may have intended (and may hold by the intention) to help another couple who are unable to have a child of their own. This couple may warmly wish to accept the child as their own. It seems to us that there must be some legal means available, including proper safeguards for the child, whereby courts can order a child be treated in law as the child of those who contributed the embryos or eggs or sperm which are placed in the carrying mother.
I should perhaps emphasise that in making that provision and in bringing it forward we do not intend in any way to condone or encourage surrogacy arrangements. That should be clearly understood.
1116 Commercial surrogacy is entirely prohibited, and all surrogacy arrangements are unenforceable. Clause 33 of the Bill confirms that.
Moved, That the House do agree with the Commons in their Amendment No. 120.—(The Lord Chancellor.)
§ 9 p.m.
§ Lord Meston
My Lords, we should be grateful to the Government for dealing with this issue in this very carefully produced amendment. It meets a need in a few specific cases. It is consistent with the suggestions contained in the Warnock Report, and I therefore venture to suggest that it is consistent with common sense. The only question I ask the noble and learned Lord is whether and when regulations may be expected under the proposed new subsection (9).
§ The Lord Chancellor
My Lords, I am grateful for the welcome afforded to this clause. We carefully considered the matter. It was obvious that there was a problem. I am glad to hear the noble Lord say that it is a carefully considered clause. The provisions that we need to make will require to be consulted on in accordance with our usual open practice. I hope that by the autumn of 1991 the necessary regulations will be capable of being put in place.
§ On Question, Motion agreed to.