The UK and Scottish Law Commissions are running a joint consultation entitled “Building families through surrogacy: a new law.” The consultation paper lacks a simple and clear definition of the aims of the proposals, but on page 40 it says, “Our primary aim […] is that our proposed reforms will encourage those wishing to enter into surrogacy arrangements to do so in the UK rather than overseas.” [Emphasis added.]
The proposals are to open up surrogacy in the UK, including provisions for paying birth mothers and allowing the advertising of surrogacy-enabling services. This article provides an overview of why we profoundly disagree with the proposals and how we see them as an assault on both women’s and children’s human rights, and we show that the consultation is one-sided, misleading even. We plan to provide separate advice about responding to the consultation shortly.
With the exception of Iran, all countries in the world ban paying people to give up one of their kidneys for someone else’s benefit, on the basis that it is unethical. Giving up a kidney carries substantial health risks, including premature death. It is always the poorest people who come forward to sell their kidneys, and when money is involved in such a transaction it affects health professionals’ decision-making and risks undermining their dispassionate care of patients – not to mention that it commercialises human life itself.
The US National Kidney Foundation explains the thinking behind the ban like this:
“Offering direct or indirect economic benefits in exchange for organ donation is inconsistent with our values as a society. Any attempt to assign a monetary value to the human body, or body parts, either arbitrarily, or through market forces, diminishes human dignity. By treating the body as property, in the hope of increasing organ supply, we risk devaluating the very human life we seek to save.”
Like live kidney donations, surrogacy carries substantial health risks for the birth mother, including premature death. To pay a woman to become pregnant and give birth for someone else commercialises and commodifies not only her body and reproductive functions, but also the baby.
So why, when there is almost universal consensus on not introducing payments for kidneys, do so many people accept paying for surrogacy, including, it seems, the law commissioners?
Could it be that it’s because becoming pregnant and giving birth is not something that men are able to do and that we live in a world that almost always prioritises men? Or is it because surrogacy is the other bookend to sperm donation – and if that’s OK, ergo surrogacy must be too – no matter that a sperm donation takes a couple of minutes while pregnancy, childbirth and the postpartum changes take a year?
It is striking that nowhere in the 502 pages of the consultation paper is there a mention of the parallels with kidney donation, nor does it start by explaining the broad ethical issues and asking simple and direct questions about people’s opinions about those before moving on to the detail. Instead the first question is about which level of judge surrogacy cases should be allocated to in the courts!
This is like a consultation about plans for a new motorway that would run through your back garden that never asks whether you think a new motorway is actually justified but instead asks about the colour of the concrete, the spacing of the street lamps, and the font to be used on the road signs. If you say you’d prefer black concrete to pink, there’s a real risk that would be interpreted as support for the motorway. Is the final question (Question 118) which asks for your views on anything not covered elsewhere in the questionnaire really the place to say that you don’t want another new motorway and that in fact you would prefer public resources to be ploughed into better public transport systems? How many people will have given up in despair long before reaching Question 118?
This is a fundamentally dishonest methodology. And it does suggest that women still don’t have full human rights because it’s hard to believe that an issue of such significant potential negative impact on men’s human rights would have been treated in this way. If we can sell one woman’s reproductive capacity, we devalue all women, placing them in a sub-category of human being whose biological functions are up for sale for the benefit of others who are invariably richer and more powerful – and usually male.
There’s a section in the consultation paper on “Ethical arguments in surrogacy” but it is limited and biased. The first ‘ethical argument’ considered is ‘procreative liberty,’ which is described like this:
“In respect of the position of intended parents, the argument raised in favour of surrogacy is that it supports a person’s procreative liberty. Procreative liberty (sometimes termed the right to reproduce) has been defined as ‘the freedom to have children or to avoid having them.’”
The consultation paper places emphasis on the Human Rights Act 1998, in particular Articles 8 (the right to respect for private and family life), 12 (the right to marry and found a family) and 14 (the prohibition of discrimination).
To suggest that these articles justify a gay male couple or an infertile heterosexual one having a ‘human right’ to surrogacy is as baseless and offensive as suggesting that Article 2 (which covers the right to life) justifies a ‘human right’ to someone else’s kidney. The articles must be interpreted in the context of the limitations of human life and reproduction. Men cannot produce eggs or give birth; women cannot produce sperm; unfortunately some people, for a variety of reasons, are infertile; and there is no absolute human right to a child. This is reality, not discrimination.
In fact Article 17 explicitly prohibits the use of the Convention’s rights in such a way as would encroach on someone else’s rights – meaning that the right to found a family does not mean anyone else is obliged to provide you with children.
Moreover the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) defines maternity as a social function and makes it clear that any measures to protect maternity cannot be considered discriminatory.
In fact on page 211, the consultation paper spells out that CEDAW describing maternity as a social function “may mean that it is difficult to reconcile any law that permits commercial surrogacy with respect for the terms of the treaty.” It is hard to understand why this was not raised as an issue in the ethical arguments section.
It is also hard to understand why there is no question in the entire consultation focusing on the impact on women’s rights – particularly as Question 90 specifically asks organisations that focus on children’s rights and welfare to provide their views on the proposed reforms. It seems that women’s rights and concerns are not even an afterthought.
The consultation paper mentions that the UK has ratified the UN Convention on the Rights of the Child (UNCRC) and its Optional Protocol on the sale of children, child prostitution and child pornography (the Optional Protocol). However, the consultation paper does not explain that ratifying an international treaty like CEDAW and UNCRC places a legally binding obligation to abide by its terms. In fact the paper suggests the opposite.
The consultation paper also mentions the UN Special Rapporteur on the sale and sexual exploitation of children’s 2018 report on surrogacy. However, the consultation paper doesn’t mention that she vehemently rejects the notion that the ‘right to found a family’ can be interpreted as a ‘right to a child’:
“The language of a ‘right to procreate’ is used in some national legal systems, though this terminology is not found in international human rights instruments. On bases such as these, it is sometimes argued that all adults are entitled to create a family and raise children. However, it is recognized that there is no ‘right to a child’ under international law. A child is not a good or service that the State can guarantee or provide, but rather a rights-bearing human being. Hence, providing a ‘right to a child’ would be a fundamental denial of the equal human rights of the child. The ‘right to a child’ approach must be resisted vigorously, for it undermines the fundamental premise of children as persons with human rights.”
That the consultation paper’s ethical arguments section starts with a concept that has been so clearly rejected by the Special Rapporteur is of serious concern.
The next item in the ethical arguments section is ‘exploitation.’ It sets out that in the context of surrogacy, ‘exploitation’ means that the birth mother might receive an unacceptably low level of remuneration and is treated unfairly, or that her consent is invalid.
This section is superficial and lacks in-depth analysis of inequality and how it increases the risks of exploitative practices, and that those at or near the bottom of the sex, race and socio-economic structural hierarchies have little if any power to negotiate or even to resist. Nor was there understanding that women may be coerced into surrogacy by husbands, boyfriends or other family members who stand to benefit from the arrangement, and that women still have a subordinate position in almost all societies and are socialised to put other people’s needs before their own and to put on a brave and compliant face.
There is no serious consideration of whether surrogacy can ever be ethical while society remains so unequal and women’s status and economic position is hurtling backwards almost everywhere, including in the UK.
This section also fails to mention the other meaning of ‘exploitation’ – “making use of and benefiting from resources” or a “situation” – in other words that the woman’s surrogacy may be exploited by third parties for profit or other personal gain. This is particularly relevant because the global surrogacy industry is estimated to be valued at about US $3 billion per annum.
Article 6 of CEDAW explicitly prohibits the exploitation of women’s prostitution – which in practice means a prohibition on all third-party profiteering from women’s prostitution. (Unfortunately this is yet to be fully implemented in the UK.)
CEDAW was adopted by the UN in 1979, just one year after the first IVF birth and before the development of the modern reproductive technology industry as we now know it. CEDAW therefore did not cover the possibilities of profiteering from women’s reproductive functions. The parallels between surrogacy and prostitution are such that there is a strong argument for extending the prohibition on profiteering from women’s prostitution to profiteering from her reproductive functions.
The ethical arguments section of the consultation paper has a subheading on ‘commodification.’ Again, it is woefully superficial and steadfastly avoids centring the key issue of the sale of children, which was the focus of the Special Rapporteur’s 2018 report.
At the beginning of her report the Special Rapporteur makes it clear that surrogacy has profound implications for both children’s and women’s human rights but that the report is of necessity focused on the rights of the child. However, she states that she “echoes the position of other human rights experts who have stated that discrimination against women, through the instrumentalization of their bodies for cultural, political, economic and other purposes, including when rooted in patriarchal conservatism, cannot be accepted.”
This seems to acknowledge that surrogacy – which is essentially the renting of a woman’s womb – is incompatible with women’s human rights, just as the sale of a kidney is. She goes on to relate the recent rise in international surrogacy arrangements to the fall in intercountry adoptions as the latter have come under stricter international standards over the last two decades. She notes that:
“The international community confronted adoption systems which were based on satisfying adult demands for children and were driven by commercial interests and financial incentives, and which in practice exploited the vulnerability of birth parents. In response, the international community has insisted that the best interests of the child be the ‘paramount consideration’ in regard to adoption, created standards requiring strict regulation of the financial aspects of intercountry adoption, sought to protect vulnerable birth families, and denied that prospective adoptive parents have a right to a child.”
Although there are some differences between adoption and surrogacy, she makes it clear that common human rights principles apply to both, in particular obligations to prevent the sale of children and the exploitation of birth parents, and she laments the pressure from the commercial surrogacy industry for impunity from the safeguards that apply to adoption. The consultation paper explores none of these issues in any depth.
Choice and agency
The section on ethical arguments for surrogacy in the consultation paper places great emphasis on respecting a woman’s right to choose what to do with her own body, including to engage in surrogacy. There is even a suggestion that any limitations on her right to choose surrogacy would be an infringement of her human rights. This is the same argument we hear used over and over to justify prostitution and it really doesn’t hold up to scrutiny – because it is always the women and girls with the fewest options who are drawn into prostitution and commercial surrogacy. We seldom hear this argument used to justify men selling kidneys or opting for employment under exploitative conditions (such as zero-hour contracts) when there’s an absence of better alternatives.
There is no absolute human right to do exactly as we please – and disappointment and frustration are inevitable parts of human life. It is completely reasonable for society to place limits on what it considers acceptable based on the greater good. For example, speed restrictions in built-up areas restrict people’s freedom to drive fast but contribute to the safety of other people, particularly pedestrians and children.
The dangers of disrupting the birth mother-child bond
The cultural image of the lioness fighting to the death to protect her cubs and the lack of any equivalent image of male lions doing the same is not an accident. Big cats, like human beings, are altricial mammals, which means the young are born in an undeveloped state and need care and feeding. In most mammals (unlike some bird species) this care and feeding is mostly performed by the birth mother, sometimes with the help and support of other females.
The female mammal’s drive and instinct to care for her young is in part at least biological. Pregnancy is a profound and unique process that changes the birth mother and, together with the enormous hormonal and other changes during childbirth and the immediate aftermath, primes her to love and care for her baby.
Commercial surrogacy is based on the misconception that the birth mother is a passive, impersonal, interchangeable incubator. This is reflected in much of the terminology used – for example, in the US, the birth mother is called the ‘carrier.’
Far from being a passive, interchangeable incubator, the mother is in an active symbiotic relationship with the developing embryo/foetus. In a successful pregnancy, there is a synchronised dance between the hormones produced by the mother and those produced by the placenta, which is the first foetal organ to develop. The mother constantly adapts to the growing foetus and provides it with nutrients and a waste disposal system, meaning the process is two way. Recent research has shown that the developing foetus changes the birth mother and even passes stem cells to her if she has a heart attack.
Pregnancy is a huge investment of the birth mother’s biological and psychological resources, and a bond develops between her and the child – regardless whether she actively wishes this or not, and whether the egg was hers or provided by a donor.
Some researchers refer to the months immediately after the birth as the fourth trimester of pregnancy. Separating the mother and baby during this period has a profound impact on both of them, even when all their physical needs are adequately met. This can cause lifelong consequences for both.
Although surrogacy is not identical to adoption, there are many parallels and similarities. Studies of women who gave up babies for adoption found that they tend to suffer chronic grief for the rest of their lives and have heightened susceptibility to depression, anxiety, disturbances of sleep, appetite and personality, loss of self-confidence, feelings of rejection, and suicide. This seems to be true even when the women voluntarily decided during the pregnancy to give the baby up for adoption.
Studies of adopted children have found that they too are susceptible to depression, anxiety, emotional and behavioural problems, relationship difficulties, and suicide and homelessness – even when their adoptive parents were loving and their basic needs were well met.
Many researchers put these difficulties down not to adoption per se but to the separation of mother and baby at birth – which they describe as a primal wound. There is little reason to expect the outcomes for ‘surrogate’ mothers and children to be significantly different from adoption outcomes, although so far there has been little independent research on this.
Studies of the effects of separating primate babies from their mothers at birth suggest there is a biological basis for the negative consequences for both the baby and the mother. We meddle with these processes at our peril.
Commercial surrogacy by the back door
The glossary at the start of the consultation paper defines commercial, and non-commercial or altruistic surrogacy like this:
Altruistic / non-commercial surrogacy: A surrogacy arrangement in which neither the woman who becomes the surrogate, nor any surrogacy agency involved, makes a profit, and the arrangement is not enforceable as a matter of contract law.
Commercial surrogacy: A surrogacy arrangement in which the woman who becomes the surrogate and any agency involved charge the intended parents a fee which includes an element of profit. A commercial surrogacy arrangement may also be characterised by the existence of an enforceable surrogacy contract between the intended parents and the surrogate.
The Human Fertilisation and Embryology Act 2008 (HFEA 2008), the legislation that governs this aspect of surrogacy, specifies that no payments other than “expenses reasonably incurred” are allowed “unless authorised by the court.”
Under current law, surrogacy cases only come to court during the application for a parental order after the birth of child. Judges are, quite rightly, bound to rule in what they perceive to be the best interests of the child. Confronted with a baby who was born in another country in a commercial surrogacy arrangement and then brought here by the ‘intended parents,’ judges usually approve the commercial payments even when they include a large element to an agency (US $21,500 in one case), in order to regularise the child’s status.
As a result, commercial surrogacy is now effectively accepted in the UK under certain circumstances. On page 105, the consultation paper says:
“English law, as developed through the jurisprudence of the High Court in the 30 years since [the Warnock Report], does not view commercial surrogacy as an intrinsic wrong.”
Surely it is wrong that commercial surrogacy has been accepted without a proper public debate? Does commercial surrogacy’s acceptance in case law – because judges have the gun of the child’s best interest at their heads – mean that legislation must now go ahead and catch up? Would that not be giving in to emotional blackmail? Isn’t that a lousy basis for new legislation – particularly in a field that has such profound implications for women’s and children’s human rights?
We are not convinced that allowing commercial surrogacy is ever in the child’s best interest. If giving the ‘intended parents’ a parental order is the only option in this situation, surely it is time to devise some way of making provisions for the child while making it clear that the court does not condone commercial surrogacy?
A public information campaign explaining that commercial surrogacy is abhorrent and is not condoned in this country would go some way to reducing the numbers that engage in this practice. There is a reluctance to prosecute the ‘intended parents’ because of worries that would ‘taint’ the child – but there is no reason not to rigorously prosecute any intermediaries involved.
The law commissioners’ key proposals
Here is a brief summary of some of the key proposals that the law commissioners are consulting on with an explanation of why we oppose – or in one case, tentatively support – them.
1. A new pathway to legal parenthood
The key proposal is for a ‘new pathway to legal parenthood’ for domestic (but not international) cases. This would involve the following steps:
- Health and criminal record checks of the ‘intended parents,’ the birth mother, and her partner, if she has one.
- Independent legal advice and ‘implications counselling’ for the ‘intended parents,’ the birth mother, and her partner, if she has one.
- A shallow assessment of the welfare of any child born through the arrangement. This does not include in-depth interviews or home visits such as would take place in an adoption.
- A written surrogacy agreement between the ‘intended parents’ and the birth mother.
- Conception, pregnancy and birth.
- At birth the ‘intended parents’ automatically become the legal parents of the child and the birth mother has five weeks to lodge an objection to this. Should she object, the case goes before the court and a judge decides what is in the best interests of the child.
This proposed pathway violates many of the recommendations of the Special Rapporteur that are designed to guard against the sale of children and the exploitation of birth mothers, including:
- The birth mother must be accorded the status of legal mother at birth, and must be under no contractual or legal obligation to participate in the legal or physical transfer of the child.
- All payments to the birth mother must be made before the legal and physical transfer of the child and must be non-reimbursable – even if she decides not to relinquish the child.
- The birth mother’s choice to transfer the child “must be a gratuitous act, based on her own post-birth intentions, rather than on any legal or contractual obligation.”
- Pre-conception checks, while encouraged, cannot take the place of appropriate welfare checks after the birth of the child.
- Decisions about parentage and parental responsibility must be made by a court or other competent authority on an individual basis after the birth with the best interests of the child being paramount.
How is it possible that the law commissioners can propose a ‘new pathway to parenthood’ that violates so many of the key recommendations of the specialist appointed by the United Nations to investigate surrogacy from the point of view of the rights of the child?
The law commissioners’ justifications for some of the more contentious aspects of their proposals are flimsy at best. For example, they justify no proper welfare checks on the ‘intended parents’ either before conception or after birth on the basis that parents of children born through the age-old natural process are not subject to such checks. However, they are not comparing like with like.
Pregnancy, birth and the post-partum changes are intense physical and existential experiences that change you and prime you to love and be sensitive to the new-born child and rise to the challenge of the enormous task of raising him or her to adulthood. For obvious reasons ‘intended parents’ do not have this advantage.
The decision to give legal parenthood to the ‘intended parents’ at birth is justified in part at least by some of the ‘surrogates’ they interviewed prior to the consultation saying that they didn’t want to be legal parents of the child at birth. Do the wishes of a relatively few women really justify a law that violates the Special Rapporteur’s recommendations?
Bringing a child into the world is a huge responsibility. To condone women deliberately doing so without any responsibility for that child would trivialise one of the most profound aspects of human life. It would turn the woman’s body into a production line. Any way you look at it, this is abhorrent.
Another way the law commissioners justify the proposal to make the ‘intended parents’ the child’s legal parents at the moment of birth is that it would not be by contract (which would contravene the Optional Protocol) but by law. This is smoke and mirrors – and indeed the Special Rapporteur makes it clear that at it makes no difference whether it is by legal or contractual obligation.
There are other implications of the birth mother not being the legal mother at the time of birth. It would set a precedent that is likely to have negative implications for all women in the future, trivialising their reproductive and maternal capacities and the unique nature of the bond between the birth mother and the child.
The consultation does not ask a simple and direct question about whether you agree with this new pathway. Instead the questions are about the detail. This is dishonest because in isolation many of the proposals appear sound. For example, who could object to pre-conception medical checks on all the participants? Our concern is that any agreement to the details may be taken as agreement with the ‘new pathway’ as a whole.
2. Regulated surrogacy organisations
The law commissioners are proposing to allow non-profit making surrogacy organisations, regulated by the Human Fertilisation and Embryology Authority (HFEA), to provide ‘matching and facilitation’ services and that all restrictions on advertising those services will be removed.
On the surface allowing regulated non-profit making organisations sounds reasonable. But in practice even if they are technically non-profit making, they will be subject to the need to cover their costs, which no doubt will include swanky offices and hefty salaries for executives. This will inevitably mean that commercial objectives will drive them and they will need to continuously seek new ‘business’ and new women who can be convinced or coerced to rent their wombs. This and the removal of all restrictions on advertising will inevitably lead to a rapid expansion in the numbers of surrogacy ‘arrangements.’
There’s no straight-forward question asking if you want to see an increase in surrogacy in the UK or even if you want surrogacy to be legal at all. Instead you are asked numerous questions about the minutiae and if you agree, for example, that the HFEA should be the regulatory body, there’s a risk this will be construed as consent for this unleashing of market forces.
Once again, instead of a simple question asking whether you want the UK to abide by the Special Rapporteur’s recommendation of allowing no payments to the birth mother other than essential basic expenses that are itemised and covered by receipts or to allow payments beyond that (with further questions dependent on your answer), there are about 17 questions about payments. Each of these is about details, which out of context can sound reasonable. This risks even the wisest and most astute respondent being bamboozled into inadvertently agreeing to something they fundamentally abhor.
The Special Rapporteur is right and all payments beyond essential basic expenses to the birth mother should be outlawed. In fact we would like to go further and follow Sweden’s lead and ban surrogacy altogether. Women should not be put in a position where renting their womb is a solution to their poverty, just as men should not be put in a position where selling a kidney is a solution to their poverty, and children should not be up for sale.
4. A national register of surrogacy arrangements
Children have a right to know their origins. Although we would prefer there to be no surrogacy in the UK, while even one child is born this way, there clearly needs to be mechanism for her or him to find out where they came from. We therefore tentatively support a register recording the identity of the ‘intended parents,’ the birth mother and the gamete donors, with children having access to it from the age of 16 or 18.
By accepting the erroneous ‘procreative liberty’ position and side-lining women’s and children’s rights, the law commissioners have taken a dangerous path. Changing the law to encourage surrogacy in the UK (as they have stated is their aim) is surrendering to some of the most inhumane forces on the planet.
While we understand the life-affirming desire for a child of one’s own, there are many reasons why sometimes that desire cannot be fulfilled naturally. We do not believe that renting a woman’s womb is ever an ethical solution to this dilemma. To do so is the extension of hyper-consumerism into the core of our humanity – women as means to an end, the child conceived as private commodity. We’re uncomfortable with the echoes of the patriarchal imprisonment of wives to ensure the continuation of the patriarch’s bloodline and all that women have suffered down the centuries as a result.
We live on a planet that faces environmental catastrophe and rising inequality and hardship. Around four million children are currently living in poverty in the UK. Women are being driven into prostitution to feed their children. Many single mothers struggle in isolation.
There are many ways that adults who are unable to have children of their own can have children in their lives. There are many ways to make a positive and practical contribution to children’s well being and development, and to enjoy their vitality and beauty. There are so many ways to give and receive love that do not involve commodifying women and children.
We do not believe that the UK government should be encouraging or even condoning surrogacy. A more ethical approach would be to invest in a more child-friendly world, to reintroduce the understanding that all adults have a responsibility to the next generation and that it takes a village to raise a child well, and to encourage schemes for those without children to participate safely in the lives of those who do. Perhaps ultimately the solution to the anguish of hankering for a child of our own that cannot be can only be found in human community.
We do not accept that surrogacy is a valid option for poor women, any more than prostitution or selling a kidney is. Instead of pouring resources into surrogacy let’s focus on reducing inequality and expanding women’s economic and employment options so that prostitution and surrogacy are never again seen as reasonable solutions to economic marginalisation.
Let’s follow Sweden’s lead and ban surrogacy altogether in the UK.
Responding to the consultation
The consultation is unnecessarily confusing. It has 118 questions, many of which have multiple parts, and most of which are about details rather than the broad ethical questions. We are therefore preparing a crib sheet and template responses with the aim of helping people who don’t have much time to lodge effective objections to the law commissioners’ proposals. We will post a link here as soon as it is ready.