Leading article: Hard cases indeed, but existing law can cope

Hard cases make a bad basis for changes in the law. Difficult and sometimes harrowing cases involving fertility, abortion, surrogacy, same sex adoption - and they have come in a welter in the past few days - have so far made no compelling case even for a review of existing law.

Take, first, the Kellys. As a manoeuvre in a messy divorce, the husband turned to the courts to fight with his wife. The immediate argument was about whether she should carry their baby to term, but it must be clear to any onlooker that all kinds of other issues lay outside those that the court was being asked to resolve. The father has now changed his mind, which is good, and we should be glad that he came to his senses - but it was not before a motley crew of tabloid newspapers, the Cardinal Archbishop of Glasgow and abortion rights activists had clambered on to the wagon. As for the Scottish judges, it looks as though they have gone fishing in a legal pool most English lawyers had considered closed for the duration of the 1967 Abortion Law Reform Act. Nothing has emerged that suggests that the basic clause of that Act - termination of pregnancy shall be decided by a woman in consultation with two doctors - has suddenly become unambiguous.

The same can broadly be said of the excitements surrounding surrogacy. When we strip away the hype (and the suspicion that a certain class of story gets more air-play and newspaper column inches over holiday weekends than at other times) the question boils down to whether existing British law is inadequate to cope with what may be a growing number of people wanting to acquire children by means of unrelated women's wombs. The answer is: case not proven, and that is not for the cowardly reason that instigating a review of surrogacy or adoption law would somehow be "dangerous". The stance adopted by Tessa Jowell, Minister for Health, is apposite: come to me, she said, with instances that look as if they expose the limitations of the present law, and I will look at them.

Because of its exotic circumstances, the case of two gay men with disabilities seeking a surrogate mother through the gay press has attracted understandable attention. "Exotic" only implies exceptional and unusual; all the more reason for not generalising on the basis of these particulars. As things stand there is nothing to stop these men being considered candidates to foster or adopt. Elaborate assessment procedures exist, involving, it is true, a wide exercise of professional discretion by social workers and judgements by lay panel members. There are some children, on the books of such agencies as Parents for Children, who might be happier or better cared for by gay, disabled men, in comparison with a life in institutional care. The law puts the welfare of the child at the centre of proceedings, which is how it should be.

Say these gay men find a woman willing to be impregnated and carry a child to term. They could seek to evade the regulatory regime run by the Human Fertilisation and Embryology Authority, by not using a registered clinic. If they did use such a clinic, the HFEA would require a parental order before the child were handed over, and they would not get one, since the law requires parents of different gender. If they did not use the official procedure the child would, in law, be its mother's for all official purposes; she could "give" it to them, but that transfer would have no legal meaning. If they then sought its adoption, the rigorous adoption procedures would kick in.

Behind all this lies a principle of law which is also a matter of common sense: the child's well-being depends on there being someone identifiably responsible for it. That must, in the first instance, be the birth mother. If she cedes that responsibility, it should pass only under close legal supervision to a named other person, prepared to take on the work of a lifetime. There is not, nor should there be, any legal prohibition on that other person being gay or disabled, provided they possess the attributes of effective potential parenting.

But that is not the same as giving official encouragement to gay adoption or surrogacy, or providing scarce National Health Service resources to gay couples wanting, for example, sperm counts. Same-sex union is a happy and acceptable part of our society, and is gradually developing recognition and acceptance in a multitude of ways. But whatever else it may be, a homosexual or lesbian marriage very obviously precludes heterosexual procreation. How can gays and lesbians demand public assistance to help them achieve something that their sexuality specifically denies? It defies logic.

That does not mean that gay people cannot be good parents; of course they can be, and many are. And it is certainly open to them to point to the evidence of heterosexuals who are demonstrably worse parents. But the state's business, in this context, is to decide what is an appropriate way to spend tax resources. Would it really be so harsh for a cash-strapped public health service, which all the time makes utilitarian judgements, to argue that such arrangements lie outside the realm of state support?

The modern British state cannot enforce a morality, at least one with content any more specific than the statement of Judaeo-Christian liberal- humanist principles that the Department for Education and Employment has just endorsed. But moral neutrality is not at all the same as giving encouragement to arrangements, especially those for the nurture and upbringing of children, which are at best experimental. Doctors, social workers and guardians ad litem are all agents of the state in matters of child care. They need guidance on how to make judgements with consistency and fairness.