Page 3466 - Week 12 - Tuesday, 11 October 1994
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In effect, we made commercial surrogacy an offence; we made non-commercial surrogacy not an offence but something we discouraged; and we made the aid and abet provision an offence for both commercial and non-commercial surrogacy. Mrs Carnell put to me in some discussions earlier on that that should not be the case; that, as a matter of principle, if conduct itself is not an offence, aiding and abetting it should not be an offence. I can see a legitimate point on that.
The objection was on the basis that, at the moment, that aid and abet provision makes impossible the proper, safe carrying out of the type of agreement that we do not outlaw but discourage. That is not my reason for accepting her amendment. I believe that we made it clear in the introductory speech and in the explanatory memorandum that that aid and abet provision was not designed to prevent access to information necessary for the safe carrying out of a non-commercial surrogacy agreement, but it was designed to prevent people exploiting.
There is a potential difficulty with the form of the Bill as proposed to be amended by Mrs Carnell. There is the possibility that, if people are sharp and are trying to get around this, they will seek to disguise a commercial surrogacy arrangement as a non-commercial surrogacy arrangement. Unless the couple were silly enough to say to the doctor, "This is indeed a commercial arrangement and here are our bank records showing that we are paying the surrogate mother a sum of money", and the surrogate mother was silly enough to say in the doctor's rooms, "Yes, I am receiving a sum of money and here are the bank records to provide it", you could have the possibility of doctors doing this and then, if charged, going into court and saying, "You are unable to prove that this is a commercial agreement" or "You are unable to prove that I knew that it was a commercial agreement when I was facilitating it". I did put in some discussions earlier this evening that if it came to that, if we did see attempts to evade this legislation by that sort of ruse, the Government may well come back at a future time and say that we should return to the original form of the Bill.
One would hope that it will not come to that and that lawyers and doctors will not seek to evade this legislation. I think that the fact that the principle of making commercial surrogacy agreements unlawful is likely to go through this Assembly unanimously, or nearly unanimously, will send a very strong signal and people will be on notice that attempting to avoid this, attempting to disguise commercial agreements as non-commercial agreements, will be looked at very sceptically. While we as an Assembly have agreed that we will not extend the aid and abet offence to the non-commercial agreement, if people seek to exploit that the Government may well come back with further amendments. From discussions this evening it may well be that if members are convinced that such abuses are occurring they will be inclined to return to the original form of the Bill.
The Government will not be opposing Mrs Carnell's amendments - not because we thought that we were making it impossible for a person to get access to sound professional advice in the case of a non-commercial agreement, because we sought to structure the Bill and to structure the explanatory memorandum to say that that is not the intent of the aid and abet provision, but on acceptance of the principle that if, as a matter
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