New science, new families, old law: is the Human Fertilisation and Embryology Act fit for purpose?
Sir James Munby10 December 2018
This is the text of Sir James Munby's Keynote Presentation at the Progress Educational Trust's 2018 Annual Conference 'Make Do or Amend: Should We Update UK Fertility and Embryo Law?'.
I must begin with a disclaimer. Many of the issues with which you are concerned today are scientific, philosophical or ethical. I am neither a scientist nor a philosopher nor an ethicist. I am a mere lawyer, and that is all I can really speak about.
I first came to the law over 50 years ago, in 1967. In January 1967 we were still in the dark ages. Abortion was a crime, as were all public or even private homosexual acts. Contraceptives were still not generally available on the National Health Service. But by the end of that annus mirabilis we were in the modern world – our world.
For in 1967, the world changed. In June, Parliament enacted the National Health Service (Family Planning) Act 1967, sweeping away the remaining institutional restraints on the provision of contraception for social rather than purely medical reasons and the remaining distinction between the provision under the NHS of contraceptives to the married and the unmarried; in July, it enacted the Sexual Offences Act 1967, decriminalising homosexuality; and in October the Abortion Act 1967, legalising abortion.
The ready availability of the contraceptive pill, both commercially and legally, removed the fear of unwanted pregnancy. The legalisation of abortion removed the fear of the consequences of contraceptive failure. Sex was now something to be enjoyed, if one wished, for purposes having nothing to do with procreation. And sex between consenting adults of the same sex was no longer criminal. A fundamental link – the connection between sex and procreation – had been irretrievably broken.
Time was when one tended to lead to the other. In the modern world, the link is much less clear-cut. Two great developments have transformed matters.
First, as I have said, contraception means that conception is no longer the typical consequence of sexual intercourse.
Secondly, and more recently, enormous advances in medical, and in particular reproductive, science mean that reproduction is no longer confined to 'natural' methods – modern forms of medical technology mean that, conversely, sexual intercourse is no longer a necessary pre-requisite to conception. Many children today are born as a result of 'high-tech' IVF methods almost inconceivable even a few years ago.
One of the consequences of this is that the chronological limitations on motherhood have changed. The menopause does not prevent women having children by IVF or surrogacy into their 50s or 60s. This raises serious issues. Critics argue that having a baby at such an advanced age is 'selfish' because the mother will not be around to see her child grow up. Of course, there is the question whether it is right and fair to be mothering a child if you are unlikely to live until the child is an adult. But the growth in life expectancy means many over-60s will see their children into adulthood. And I do not think it flippant to observe that today's 60 is like yesterday's 40.
The fact is that none of the relevant legislation imposes an upper age limit. And when, in a surrogacy case, the matter comes to court, the judge is presented with a fait accompli. The child, whose future welfare it is the duty of the judge to promote, has been born and is living with the new parents. What is the judge to do? Refuse to make the order which would otherwise be appropriate, and leave the child in legal limbo? Surely not.
All this has had the most profound implications for what we think of as the family and has led to developments in the law of parenthood which even the most far-seeing would hardly have contemplated in 1967.
Like it or not, and we must recognise that many do not and are profoundly troubled by what is happening, the current reality is that every concept of what a family is, every concept of what a parent-child relationship is, is very much back in the melting pot. Society is moving on and the challenge for lawmakers is what steps, if any, we take to accommodate those changes into our legal framework.
I should add: Many people have experience of people who have gone down the IVF route, the surrogacy route or the same-sex marriage route and they have come to realise that these are not people with horns. They are very nice people – they just happen to have a different life experience or lifestyle.
But although in hindsight we can see that 1967 marked the epochal turning point, most of its consequences have actually been much more recent. After all, the infamous Clause 28, providing that: 'A local authority shall not... promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship', remained on the statute book from 1988 until 2003.
Only in 2002 did it become possible for two people, whether of different sexes or the same sex, to adopt, provided they were 'living as partners in an enduring family relationship'. Previously a couple could adopt only if they were husband and wife. In 2004 this was extended to include civil partners, and in 2013 to include married couples of the same sex.
One of the drivers for all this was undoubtedly the introduction into our domestic law by the Human Rights Act 1988 of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. For present purposes the two most important provisions are Articles 8 and 14. Article 8 protects and demands 'respect' for 'family life'. A striking example of the width of the concept is to be found in the decision of the Strasbourg court in Kroon v The Netherlands in 1994, where the court held that the relationship between a man and a woman amounted to family life, even though they chose neither to marry nor to live together, because they had a stable relationship which had produced four children. This has been profoundly important for the development of family law, including the law of surrogacy, as I shall explain below.
Article 14 prohibits discrimination in relation to the rights and freedoms set out in the Convention on any of a number of enumerated grounds 'or other status'. This has proved to be a powerful tool in preventing discrimination in relation to parenthood: such as In re G (Adoption: Unmarried Couple) in 2008, where the prohibition in Northern Ireland of adoption by an unmarried couple was held unlawful as involving a breach of Article 14. This, as we shall see, has also had important implications for the law of surrogacy.
The Surrogacy Arrangements Act 1985 is still in force, though it can be seen that much has happened since it was enacted.
But we have not yet come to the end of history. Our thinking about what a family is continues to change, not least in the light of more enlightened thinking about transgender people. We are, or, if we are not yet, we soon will be, grappling with the question of whether a child can have more than two parents and whether a child can have only a father and not a mother. These may be in part ethical questions, but they are also fundamentally important questions of law.
Meanwhile, the relentless march of medical science continues to raise a host of profoundly difficult issues, not least those concerning what in tabloid-speak are referred to sometimes as 'designer babies' and procedures such as womb transplants.
These, and many similar issues, many of them raising profoundly difficult scientific, philosophical and ethical questions, are all matters that any review of the law must consider.
A fundamentally important question is the extent to which it is either possible, and if possible desirable, to 'future-proof' any new statutory provisions. Unless legislation is tightly drawn, it may have unforeseen and highly undesirable consequences. But the more tightly drawn it is, the greater the frequency with which it will require overhaul and updating in the light of developments in our still rapidly changing world. By the time the Law Commission's work on the Surrogacy Arrangements Act 1985 reaches legislative fruition, the law will be the best part of 35 or more years old.
That is a very long time indeed, for attitudes to surrogacy have changed very profoundly since 1985.
The approach in the Surrogacy Arrangements Act 1985 was – is – that surrogacy is, at best, to be tolerated, so neither encouraged nor in large part even regulated. Section 1A provides that surrogacy arrangements are unenforceable. That has the advantage that litigation on such matters tends to be a matter for the family courts, not the Queen's Bench Division or the Chancery Division, while not preventing the family courts making proper arrangements for the child by means of orders either in wardship or under section 8 of the Children Act 1989. Sections 2 and 3 of the Act contain statutory prohibitions, enforced by criminal penalties, against the commercialisation of surrogacy arrangements and their advertising.
Contrast, the latest Government Guidance 'Having a child through surrogacy' published in February 2018. Part of that Guidance, 'The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales', is explicit: 'Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves... The Government supports surrogacy as part of the range of assisted conception options.'
We have indeed come a long way since 1985.
The one key area where, at present, surrogacy is regulated is, of course, in relation to the important legal provisions in section 54 of the Human Fertilisation and Embryology Act 2008 (replacing with mainly minor amendments provisions originally in section 30 of the Human Fertilisation and Embryology Act 1990), which provide for the making of 'parental orders'. The number of applications for parental orders has been increasing and there is, as you will know, now a very substantial body of case-law, in particular, though not exclusively, in relation to sections 54(1) and 54(2)-(8), which set out the conditions that have to be satisfied before the court can make a parental order.
What the case-law demonstrates, I suggest, are three things:
that the history of the legislation is curious: see In re X (A Child) (Parental Order: Time Limit) ;
that there are significant problems with section 54 as currently drafted, and
that the judges have been adept – properly adept – in making the legislation work, despite these problems, so as to further the best interests of the child (not that this means that reform is not necessary).
I take these in turn.
The history of the legislation
Put shortly, the problem, for which the solution was what eventually became section 30, was raised in the Commons at second reading by a backbencher, prompted by concerns raised with him by constituents involved in ongoing litigation: see Re W (Minors) (Surrogacy) . A government amendment was introduced at a late stage in the Parliamentary process, so section 30 had to be drafted quite quickly. Moreover, for something so important, the debates in Parliament on section 30 were quite brief.
A comparison of section 30 with the relevant provisions of the Adoption Act 1976 demonstrates (as does the corresponding comparison of section 54 with the relevant provisions of the Adoption and Children Act 2002) that in a number of respects the law in relation to parental orders was derived from the law in relation to adoption orders: consider, for example,
section 54(4), imposing a residence requirement – 'the child's home must be with the applicants';
section 54(6), requiring the free and unconditional agreement of the surrogate to the making of the parental order;
section 54(7), making such agreement ineffective if given less than six weeks after the child's birth; and
section 54(8), requiring the court to be satisfied that no money has changed hands 'other than for expenses reasonably incurred' unless 'authorised by the court.'
In other respects, the requirements are different. Thus,
section 54(2) prevents an application for a parental order by a single person (something that has always been possible in the case of an adoption order);
section 54(3), which provides that an application for a parental order 'must' be made within 6 months of the child's birth, has no equivalent in adoption law; and
there is no provision enabling the court to dispense with the need for the surrogate's consent if the child's welfare so requires (contrast section 52(1) of the Adoption and Children Act 2002).
Problems with section 54 and the judicial response
I do not have time for a comprehensive analysis, so I concentrate on just a few examples.
The fact that 54(2) prevents an application for a parental order by a single person defied judicial attempts to construe the legislation as meaning something different, but it was held to be incompatible with the Convention on grounds of discrimination (see Re Z  and ). Remedial legislation is promised.
Conversely, the fact that section 54(3) provides that an application for a parental order 'must' be made within 6 months, did not prevent the court holding that an application could validly be made later. The consequence, however, is that there is nothing to indicate either just how much later or the criteria to be taken into account. Legislative clarification might be thought both appropriate and useful.
The requirement in section 54(4), that 'the child's home must be with the applicants' has been interpreted generously – an important application of the thinking of the Strasbourg court in Kroon v The Netherlands (1994): see Re X (A Child: Foreign Surrogacy) , where the authorities are collected.
Section 54(8), requiring the court to be satisfied that no money has changed hands 'other than for expenses reasonably incurred' unless 'authorised by the court', has generated much judicial anxiety. It reflects, of course, the criminalisation of commercial surrogacy in the 1985 Act and, as I have pointed out, the philosophy which has long been a part of our adoption law.
International, inter-country, adoption cases unhappily illustrate the abuses of what can only be described as a market in children where economically deprived and desperately vulnerable mothers – sometimes but not always in the developing world – are shamelessly exploited, induced to part with their children so that they can be adopted by wealthy westerners in return for a miserably small part of the often large amounts of money that change hands. Can we be confident that similar abuses are not occurring in the context of surrogacy? I should like to think so, but I fear not.
Women are banned from advertising themselves as surrogates or receiving payment other than to cover 'reasonable expenses', but I fear that in reality a market already exists, even in this country, as payments are dressed up as expenses. How is a judge supposed to assess whether the £10,000 paid, for example, is a genuine expense? By and large, even in cases where the court thinks it is not a proper expense, the judge nonetheless authorises it, because in reality, the judge has little choice. When the matter comes to court, the judge is presented with a fait accompli. The child, whose future welfare it is the duty of the judge to promote, has been born and is living with the new parents. What is the judge to do? Refuse to make the order which would otherwise be appropriate, and leave the child in legal limbo? Surely not. To authorise the payment, however distasteful the need to do so, will usually better promote the child's welfare than not to.
The time has come to give serious consideration to abolishing the restrictions on commercial surrogacy. It is probably better to face up to reality and move to a proper system of regulation rather than prohibition.
Two final issues
The question has been raised whether the application for a parental order could be issued in anticipation and before the child is born. The idea has its attractions and is probably worth exploring. For my part, however, I would be adamant that we must retain the rule in section 54(7) that the surrogate cannot give an effective consent less than six weeks after the child's birth. As in adoption, it is an essential safeguard. So, although it may be appropriate to contemplate an application being made before birth, I would oppose any suggestion that a parental order could be made before birth.
Lastly, should we introduce into the law of surrogacy a provision enabling the court to dispense with the need for the surrogate's consent if the child's welfare so requires, as provided for in the case of adoption? I merely raise the question for consideration. It raises, in turn, a wider question: to what extent should the rules applying to parental orders mimic the corresponding rules in relation to adoption orders?