HL Deb 26 October 1994 vol 558 cc626-32

8.50 p.m.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie)rose to move, That the draft regulations laid before the House on 5th July be approved [24th Report from the Joint Committee].

The noble and learned Lord said: My Lords, the first two regulations introduce new arrangements to transfer legal parenthood to the commissioning couple, where a child is born to a surrogate mother. A commissioning couple is a couple who have arranged with a surrogate mother to carry a child for them using their gametes, that is the wife's eggs and, or, the husband's sperm, in the child's conception.

The regulations provide a mechanism for a court to grant a "parental order" transferring legal parenthood from the surrogate mother and the birth father to the commissioning husband and wife. At present such couples can only acquire parental responsibility by adopting the child.

The regulations are made under Section 30 of the Human Fertilisation and Embryology Act 1990. This section was inserted because it was concluded that the full panoply of adoption procedure was not needed when a child, born through surrogacy, was genetically related to at least one of its commissioning parents.

Section 30(9) of the 1990 Act allows regulations to be made applying and modifying the relevant legislation in the United Kingdom in relation to parental orders made by the court. One set of regulations covers England and Wales and Northern Ireland, the other covers Scotland.

As in adoption, the regulations place particular emphasis on the welfare of the child throughout childhood. In the case of parental orders the court will continue to appoint a guardian ad litem, in Scotland a curator ad litem, to safeguard the welfare of the child. Their specific duties are set out in rules of court and guidance which will come into effect at the same time as these regulations.

Similarly to adoption, the birth of the child will continue to be registered as the surrogate's and her husband's or partner's, if he has agreed to the surrogacy arrangement. The regulations allow for the setting up of a parental order register to register the child and to cross reference the entry in the existing Register of Births. Provision has been made for the subject of a parental order to obtain a copy of the original record of his or her birth.

The regulations will also ensure that, after a parental order has been made, the commissioning parents and their immediate families come within the prohibited degrees in respect of the law relating to marriage and incest. Those who are within the prohibited degrees before the making of the parental order will continue to be so.

The third set of regulations, the Legal Aid (Scope) Regulations 1994 cover England and Wales only. They are needed to bring parental order proceedings within the scope of proceedings for which legal aid is available. The regulations amend Schedule 2 to the Legal Aid Act 1988.

No parallel regulations are required for Scotland because legal aid is already available for all civil proceedings in the Sheriff Court and the Court of Session, which would cover parental order proceedings. In addition, the opportunity has been taken within the regulations to confirm the availability of assistance by way of representation to prisoners at disciplinary hearings in contracted out prisons: this follows an amendment to the Legal Advice and Assistance (Scope) Regulations 1989.I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 5th July be approved [24th Report front the Joint Committee.]—(Lord Fraser of Carmyllie.)

Lord Rea

My Lords, I would like to thank the noble and learned Lord for his brief but very clear exposition of what is actually quite a complex small item of legislation. We on these Benches welcome the regulations as a useful clarification of what was really rather an unclear muddy area. The parents concerned will be relieved that parental orders will be available to legitimate, in both senses of the word, their rights and those of the child, whose future will now be made more secure as a result.

We are also pleased that it has been decided that the scope of legal aid in England and Wales will be able to be applied to the legal costs involved if the applicants are eligible. Considering the recent restrictions on legal aid, this is particularly welcome. I notice too—the noble and learned Lord did not mention this—that the order also allows the extension of help to prisoners in contracted out prisons, which is also a necessary and useful move.

I have only one question. If the purpose of the parental order is to make legitimate the arrangements made, obviously the couple concerned should be married. That of course is one of the conditions in Section 2 which have to be fulfilled before a parental order can be made. While nearly all surrogate arrangements will be made by a married couple, with another woman, it is at least theoretically possible that an unmarried couple will want to raise a child born of a surrogate mother, and want a legal arrangement which recognises—even if it cannot, in the strict sense, legitimate the birth—and secures their parental rights in law. We do not know whether this is a problem. In fact I believe we do not really know how many informal surrogacy arrangements are made now.

These regulations will have the benefit of allowing records to be kept. Does the noble and learned Lord think that in the future perhaps an adaptation of these regulations could be made to suit the case of unmarried but stable couples? As he well knows, a small minority of excellent parents are strongly opposed to the institution of marriage but they still might welcome a legal status as parents of a child born in the circumstances we have been discussing. However, this question is not meant to detract in any way from our support for a useful and carefully drafted item of legislation which will be greatly welcomed by the couples concerned.

Lord Meston

My Lords, I join in thanking the noble and learned Lord for his explanation of these regulations which do not make for easy reading. It is a matter of some regret that it has taken four years since the 1990 Act for these regulations to come along. I know of a number of people who are anxious to have the certainty of status which the 1990 Act and these regulations will provide. Those of us who recall the debates on the Act when it was a Bill passing through your Lordships' House will remember that the analogy with adoption to which the noble and learned Lord has referred is a useful one and I am glad to see the way in which it has been followed through in these regulations. Likewise, I hope that the small, and I hope, uncontroversial extension of legal aid which has been referred to will assist in a number of the applications—which can only be very small in number— which are likely to follow the implementation of these regulations.

Lord Cocks of Hartcliffe

My Lords, I, too, would like to welcome this extension of the scope; of legal aid. However, I feel that our debates about legal aid are always rather one-sided because they tend towards discussion about who is eligible and what amounts the Government are making available for legal aid. The Government have been constantly pressed over this matter, particularly by lawyers, and by lawyers through their professional bodies. Why is legal aid required in the first place? It is needed so that people can have representation in the courts and have their work prepared. This is done by solicitors and barristers.

Yesterday the House heard a Question from the noble Lord, Lord Boyd-Carpenter, about the case of Dr. Jawad Hashim and the total cost to public funds of that case. The noble and learned Lord the Lord Chancellor, who answered, said: The total costs claimed in this case to date amount to £4.1 million, of which £2.8 million has been paid".—[Official Report, 25/10/94; col. 442.] This is by no means, unfortunately, untypical. I am sure the House welcomed the statement by the noble and learned Lord the Lord Chancellor later that he was looking at this matter very seriously and hoped to come forward with specific proposals to make sure that legal aid was not abused and that the regulations were changed so that this sort of case would be curbed in the future.

My noble friend Lord Williams of Mostyn referred to the deep public disquiet about donations of public money to such a case, but forbore from mentioning the deep public disquiet about some of the fees which are being claimed and paid to counsel in particular. In the Official Report of 10th October, at col. WA 94,I elicited from the noble and learned Lord the Lord Chancellor the information that the highest paid counsel in that case to date had received £671,111.11.I believe that more claims are in the pipeline from Mr. Colin W. G. Ross-Munro. I read in the newspapers that he was not available for comment when that reply was published. However, his clerk was quoted as saying that Mr. Ross-Munro had been working on the case for some two and a half years. One wonders whether that was the sole case on which he was working, or whether there might have been one or two other items of work which he was undertaking at the time. No doubt that information will come out in due course if anyone is sufficiently interested to inquire further.

Such claims make a mockery of the legal aid process. On 10th October, in a Written Answer to a Question that I asked on claims by solicitors and counsel over the past five years, the following figures were given. For counsel, in 1989–90 the number of claims was 146,213. The total amount claimed was £885 million. The total amount paid was £656 million. Five years later, there were 157,103 claims—the number had increased by only 10,000. The total amount claimed had risen to £1,875 million, an increase of £1,000 million. The total amount paid had risen to £1,272 million. In other words, in five years the amount paid out had doubled, yet the rate of inflation was nowhere near that Figure. When the legal profession is not taking time off to bleat about the lack of legal aid, the pitiful amounts available, and so on, I think that it might give us, as taxpayers, some explanation as to why there has been that grotesque increase in the amounts claimed and paid.

For solicitors the story is much the same. In 1989–90 the total paid was £486 million. In 1993–94 it was £820 million. That was for 11,000 fewer cases. Therefore before the legal profession reads lectures to the Government and to the Lord Chancellor about legal aid, we should have some explanation about those figures.

Having said that, I welcome the regulations which have been put forward tonight. I do not think that in themselves they will lead to those exorbitant claims. The regulations will be much appreciated by the people on the receiving end of legal aid. However, I hope in future that when your Lordships' House and another place are discussing legal aid, they will consider why it is required in the first place, and perhaps we can together work toward curbing the growing greed of some of the legal profession.

9 p.m.

Lord Monkswell

My Lords, I rise to ask a question of the noble and learned Lord who introduced the topic. It arises from the problems that we face with the advance of science and technology which has enabled the process of surrogacy and surrogate mothers to take place. As I understood it, the noble and learned Lord stated that the regulations enabled the providers of the original gametes to become what one might describe as the titular parent of the child. That replaces the process of adoption.

Adoption is a well understood process which has been established over many years. The relationships of the different people involved in the process are well established. One has a mother who effectively surrenders her child to other parents who then become the adoptive parents. The relationships of the individuals involved— the child, the mother and the adoptive parents—are well established and understood.

My concern about the introduction of the regulations is this. What will be the position of the surrogate mother? It is a significant relationship to the child. The process of pregnancy—gestation and giving birth—is one of the most significant events in a woman's life; and it is significant for the child. What will be the situation of the surrogate mother? Will she be described as the surrogate mother? Prior to the regulations she could be termed the mother of the child on the basis that her child was then adopted by other people. Perhaps the noble and learned Lord will clarify that point.

Lord Kennet

My Lords, I heartily echo that question. It is good that legal aid has been made applicable to cases arising from these regulations and their predecessors. There may be quite a few such cases—they will be difficult.

I have some questions for the noble and learned Lord. The first is a concrete question which should be easy to answer. What consultations took place during the drawing up of the regulations? I may have missed something, but as a habitual consultee I did not see any pieces of paper. Were the consultations carried out by the HFEA or by the department direct? What kind of response was there in the sense that did many people respond? Was it a few hundreds or hundreds of thousands? We would like reassurance about the document being based on more than simple ratiocination in the buildings of government.

I come now to my two main points. I believe that it is always a mistake to change the law unless someone is suffering and that every change in the law which is suggested to Parliament should be accompanied by an account of what those sufferings are and how widespread. Can the noble and learned Lord tell us who was suffering under the earlier regulations and the earlier regime? It would help to know what the Government intend to put right by bringing in the rather dramatic and unusual regulations.

The other principle which is far wider than anything to do with the matter is this: do not enshrine mis-statements; do not enshrine mendacity in law. As we go into the looking-glass maze of the biological and genetic revolution and try to adapt society to the quasi-miracles which can now be performed by science, we run greater and greater risks of declaring that that which is not so is so. It seems to me that there is quite a startling example of that in the order. Page 10 states that: the child who is the subject of the parental order shall be treated in law as if— we should watch those words, already one is suspicious— he had been bom as a child of the marriage of the husband and wife, whether or not he was in fact born after the marriage was solemnized". That is all right. The child who is the subject of the parental order shall be treated in law as if he were not the child of any other person than the persons who obtained the parental order". That defines parenthood by the ability to obtain a parental order. Lastly, the order states: It is hereby declared that this section prevents a child who is the subject of a parental order from being illegitimate". Hitherto there has been no way of preventing a child from being illegitimate except the rather familiar one of engendering and bearing that child in a legitimate manner.

There is also the story which appears in the regulations of the two registers of birth. In effect, there are to be two separate registers, the relationship between which is to be secret. There is to be the normal register of birth and another register which will in some sense tell you an inner truth. You will only have access to that if you can give good reasons for requiring access to it. Under no circumstances, as I understand it, will you be able to learn anything about the relationship between one register and the other. Thus the same individual may appear on both registers and it may be a secret whether or not those two entries refer to one individual or two.

That is not something which we should let pass without question. That it is a serious matter I deduce from the statement on the previous page, page 9, which tells us the powers which the courts will have to enforce the orders: A court may make an order authorising an officer of the court to search such premises as may be specified in the order for the child and if the officer finds the child, to return the child to the applicant". Paragraph 4 states: He may issue a search warrant authorising a constable to search the premises for the child and if the constable, acting in pursuance of a warrant, finds the child, he shall return the child to the person on whose application the order under subsection (1) was made". That is pretty hairy, rough stuff. It means that police constables can go into the houses of families and other people and act on the extraordinarily bureaucratic categorisations of persons which appear in the document. I should not disguise that I for one am full of alarm and I hope that the Minister will be able to say something about those points.

Lord Fraser of Carmyllie

My Lords, I was not entirely sure whether the noble Lord who has just resumed his seat had offered any welcome to these regulations. I had certainly anticipated, given the remarks from the Front Benches opposite, that there would indeed be a welcome given to these important and complex regulations, which are, after all, secondary legislation and which depend for their validity on the elaborate discussions and debates that we had in this House during the course of the 1990 Act. I hope I might be forgiven for not revisiting some of the fundamentals of that debate, which were undoubtedly issues that had to be addressed with great care and anxiety.

For example, I believe I was asked by the noble Lord, Lord Rea, about the prospect of these regulations being further extended to cover the option that those who were not married might be in a position to secure a parental order. That is an option that could be pursued only if there were to be an amendment of the primary legislation of 1990. If the noble Lord would care to look at Section 30 he would find that that is a restriction on the granting of such an order.

I am grateful to the noble Lord, Lord Meston, for the welcome that he gave to the regulations and for his appreciation of how important and complex they are.

I say to the noble Lord, Lord Kennet, yes indeed, there was a considerable degree of consultation. The regulations are extremely complicated. It is for that reason that there are separate sets of regulations for England and Wales, Northern Ireland and Scotland. Issues of adoption, succession law and a variety of other matters had to be considered in the different jurisdictions. The noble Lord also questioned me as to who was suffering. Again, I say with respect, that is to revisit the very principles that were debated during the passage of the 1990 Act. Where he has any concerns about the desirability of the granting of such parental orders—that was a conclusion that was reached in the debate on the 1990 Act—namely, that an arrangement of parental orders rather than adoption should be the technique that was followed through.

What needs to be understood—I say this to the noble Lord, Lord Monkswell—is that of course the position of the surrogate mother is extremely important. It is for that reason that effectively it is virtually impossible to contemplate the granting of such an order if at any stage she would object to the passing of that order. That is the importance that is attached to her position in all this. There are clearly complicated reasons why she might become attached to the child that she has borne. It would not be unknown, for example, to discover that she was herself genetically related to the child that she might bear.

That brings me to the remarks of the noble Lord, Lord Cocks, who has yet again conducted a further part of his vigorous and relentless campaign against the excesses of lawyers. It is difficult for me, as a lawyer myself, to join with quite the same enthusiasm as the noble Lord exhibits in the onslaughts for which he is now famous, or notorious, in legal circles. I have a very clear appreciation that nothing that I can say will in any sense divert him from that campaign. I also have a very clear appreciation that the noble Lord strikes a deep chord with a wider public in his views on the apparent excesses of some of those who demand enormous fees, not from private clients but from the taxpayer through the legal aid fund.

However, I hope that on this particular set of orders— and particularly the one in relation to legal aid, the noble Lord will be mollified to this extent. As I indicated to the noble Lord, Lord Monkswell, we do not envisage that where such parental orders are granted there will be any circumstance when there will be protracted contested actions before the court. I hope that the orders will go forward simply and without complication. While, as I say, I do not expect to divert the noble Lord, Lord Cocks, from his campaign, I hope that he will be happy in regard to this one. I commend these regulations to the House.

On Question, Motion agreed to.