The Chief Registrar identified that amendments would need to be made to the Civil Registration Act 1984. He also identified that if changes were made to the specific definitions of ‘mother’ and ‘father’ and in respect of references to ‘husband’ and ‘wife’ in Part 9 of the Children and Young Persons Act 2001 (Fertilisation, Surrogacy etc.), to recognise that same sex couples may wish to have children using modern fertilisation and embryology methods, this would provide appropriate definitions for the anticipated changes to the 1984 Act.
The Department of Health & Social Care (DHSC) has responsibilities in respect of the 2001 Act.
Part 9 of the 2001 Act contains provision in respect of human fertilisation and embryology which includes definitions of ‘mother’ and ‘father’ and makes reference to ‘husband’ and ‘wife’. It is based on similar provisions in the UK Human Fertilisation and Embryology Act 1990, which has largely been replaced by the Human Fertilisation and Embryology Act 2008 of Parliament (“the 2008 UK Act”), and has since been further amended via secondary legislation.
In reviewing Part 9 of the 2001 Act against the most recent UK legislation, it was identified that none of the changes since 1990 had been applied in the Isle of Man, and as a consequence Part 9 of the 2001 Act, was now quite different and out of date in comparison with the UK legislation. For example, the current version of the 2008 UK Act includes provisions for parenthood in cases involving assisted reproduction and civil partnerships.
It was concluded that the provisions of Part 9 should be brought into line with the UK including by introducing:
The surrogacy provisions in Part 9 of the 2001 Act are based on the provisions of the UK Surrogacy Arrangements Act 1985 (“the UK 1985 Act”) which have, for the most part, not changed. It is proposed to simply restate and make minor updates to the existing text in the new Manx Bill.
The Law Commission have developed a new Bill for Surrogacy. The new Bill would bring our position in line with the UK Surrogacy Arrangements Act 1995. UK primary legislation will need to be agreed to implement Law Commission proposals here in the Island. There are some quite major themes. The establishment of a regulator, the development of a new pathway/plan, the creation of a national register, as well as practical matters such as payment, and there are other matters such as passports (where there is no legislation as passports are issued under prerogative powers), and immigration (where our legislation is extended UK legislation). The idea is to keep a keen watching brief on what is happening in the UK, but it was thought too early to seek to amend our current domestic legislation.
To try to give an element of future-proofing the Bill, a clause was added under which the DHSC can make regulations to implement provisions of UK law in relation to surrogacy. It may be that a power like this will be of some help going forward.
The proposed legislation also links to the Department’s strategic goals in respect of safeguarding and protecting the vulnerable.
Derivation provisions enable the reader to see from where the respective provisions derive. Following the position in the UK (a sensible approach bearing in mind the objective of bringing the Manx legislative position into line with the UK, and also in view of the relative complexity of some of those provisions), drafting has followed the layout and style of the UK provisions themselves.
The Bill provisions (inter alia) change the meaning of “mother” and “father” in relation to cases of assisted reproduction. Therefore, provisions repeal sections 86 to 88 of the Children and Young Persons Act 2001 (where the provisions are currently housed). However, as the new provisions can only really apply on a prospective basis, it’s envisioned we need to preserve the old sections 86 to 88 (as they will still apply to persons conceived before the new provisions are operative). Again, this follows the UK (where they still have sections 27 to 29 of the 1990 Act in force, as well as sections 15 to 29 of the 2008 Act).
The Civil Registration Act 1984 also required amendment to the equivalent UK legislation by the 2008 Act. This can be seen attached to this consultation as it stands at the moment, and as it would present, should this Bill successfully pass into law.