In 2019, the UK law commissioners ran a consultation on proposals to open up commercial-style surrogacy in the UK. We argued at the time that it was so flawed it should be abandoned and restarted, this time centring the human rights of women and children. We organised an open letter setting out some of the many ways the law commissioners had failed to adhere to good governance, equality legislation and even their own code of practice. Within about three days the letter had gained hundreds of signatures. In response, the law commissioners invited us to a meeting to expand on our concerns. This is the text of one of our presentations at that meeting.
So first, thank you for inviting us here. We really appreciate it.
We’d argue that the mistake that has been made is that surrogacy has been viewed through the eyes of those with most power. This was illustrated on the recent Victoria Derbyshire show, when the first thing, Professor Hopkins, you said you were trying to do was to provide greater ‘certainty.’ That can only mean certainty for the business model and for commissioning parents to take ownership of the baby without hassle – because human life and reproduction are messy. There is never certainty. There are almost infinite possibilities for things to go wrong.
We need to start by going back to basics.
We need to ask whether we live in a country that believes in the equality, worth and dignity of every human being. Or do we live in a country that believes that some people’s human rights are more important than others? Do we believe that the rights of the rich, the powerful, the male, the older, take precedence over the rights of the poor, the female, the young, the marginalised?
If we do believe that all human beings have equal worth and equal rights, then we have to actively protect the rights of the least powerful to ensure that they are not trampled on by those with the loudest voices and the most power.
It was the realisation that the universal human rights adopted after the Second World War were not sufficient to protect the rights of the historically oppressed that led to the development of CEDAW and the Convention on the Rights of the Child and its optional protocols (which I’ll refer to collectively as the CRC).
The consultation paper acknowledges that commercial surrogacy is unlikely to conform to the terms of CEDAW and the CRC, but suggests they aren’t binding. But the UK has ratified the Vienna Law of Treaties, which means that under international law we are legally bound to comply with the terms of a treaty on its ratification.
Even though the UK has not fully incorporated CEDAW and the CRC into domestic law, we do have a binding obligation to refrain from anything that would defeat the purpose of those treaties, and I think it’s clear that commercial surrogacy comes under that.
The sale of children
It seems to us that you have used smoke and mirrors to obscure the fact that the proposed ‘New Pathway’ amounts to commercial surrogacy in all but name, and therefore violates both CEDAW and the CRC, and would lead to the sale of children which is absolutely prohibited.
The UN Special Rapporteur on the sale and sexual exploitation of children made clear in her 2018 report that to comply with the CRC, surrogacy legislation must ensure (among other things) that:
- The birth mother is 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.
- 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.”
- There are 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.
The proposals for the New Pathway stand in clear opposition to these guidelines.
It is naive to believe that just because agencies are technically ‘not for profit,’ they won’t be driven by commercial objectives. They need to cover their costs and so must continuously seek new ‘business,’ and new women who can be convinced or coerced to rent their wombs.
Furthermore the individuals who work for these so-called not-for-profit agencies will personally benefit from the surrogacy arrangements they enable.
Article 6 of CEDAW states that ratifying countries must “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
According to the Oxford Dictionary, ‘exploitation’ has two main meanings.
The first is to treat someone unfairly in order to benefit from their work. This is the meaning you explain in some detail in Chapter 2 of the consultation paper.
The other meaning, which I don’t think you mention at all, is to make use of, or benefit from, resources or a situation. This is the meaning that applies to CEDAW Article 6.
Under CEDAW, ratifying states therefore have a legal obligation to prohibit third parties from benefiting from the prostitution of women.
This understanding is of huge importance. It means that Article 6 implicitly acknowledges that financial gain for third parties is a driver of the trafficking and prostitution of women. In other words financial gain for third parties drives the instrumentalisation of women.
While surrogacy is not identical to prostitution, it also instrumentalises women. The parallels are such that Article 6’s prohibition on third parties financially benefiting from women’s prostitution must surely be taken to implicitly extend to surrogacy – given that CEDAW was adopted before the surrogacy industry as we know it began to develop – meaning the UK has an obligation to prohibit any third party profiting from women’s surrogacy, regardless how they masquerade.
We are particularly concerned about the proposal to remove all restrictions on advertising. This would not only add another layer of profiteers to the mix – advertising agencies and the platforms that host the adverts – but would normalise surrogacy and therefore lead to a rise in demand for it.
Young women are already bombarded by online adverts from fertility clinics seeking to harvest their eggs. Typically the ads present a rosy picture and don’t mention the inherent risks that include premature death.
If all restrictions on advertising surrogacy are removed, Facebook and Google will inevitably bombard young women with similar adverts for surrogacy – and no doubt likewise there’ll be no mention of the risks.
We don’t allow advertising for things like smoking that carry substantial health risks. How on earth can it be justified for surrogacy?
We’d like you to consider the law on the harvesting of kidneys from living human beings, which also carries health risks, including premature death. Almost all countries ban payments beyond actual expenses, and advertising for the same. It’s widely recognised to be unethical to induce those in poverty to undergo the procedure by the promise of payment.
While there are differences between kidney harvesting, and egg harvesting and surrogacy, there are in fact many parallels. We’re curious why you didn’t consider these parallels – given that the ethical issues of live kidney harvesting are well established.
Women are disproportionately affected by poverty and the austerity measures introduced since 2010. Large numbers of women in the UK are now turning to prostitution as a last resort simply to keep a roof over their heads and food on the table.
This reality is fundamentally coercive.
The choice between not being able to feed your children and doing prostitution is not a free choice. But as this reality continues, this non-choice is becoming normalised and even euphemised as a woman’s ‘agency.’
This is a very dangerous situation for women.
Paying women to undergo surrogacy in this environment of extreme poverty is unethical, however it is dressed up. Just as paying for the harvesting of a kidney is.
For consent to have any meaning, it must be voluntary and fully informed. It can only be voluntary if you have a choice and won’t suffer material harm if you say no. Having a gun pointed at your head means it isn’t voluntary. Yes you might agree to it, you might even smile, but only because the alternative is worse.
Poverty acts like a gun to the head.
And how can the decision be fully informed when the media is largely controlled by the rich who promote their own interests; when most of the stories that people see about surrogacy show happy clappy families and promote the idea that being a surrogate mother is an expression of a woman’s ‘agency’?
We recently published a harrowing anonymous account of surrogacy on our website. The article was shared widely on social media and many people commented how rare it is to hear such accounts.
We know from our work and other women’s research, that in fact this story is not that unusual. Just mostly no one hears it. Maybe we hear a very few, very extreme stories – a birth mother dying, a disabled child abandoned, but they are presented as anomalies in a world of happy families. And women who’ve had a bad experience usually don’t talk about it because this notion of ‘choice’ and ‘agency’ implicitly holds them accountable and they feel ashamed.
How can informed consent be given in such a world? We understand this for kidney harvesting. Why can’t we understand it for surrogacy?
What survivors tell us
In the Nordic Model Now! group, there are a number of survivors of prostitution. We’re in touch with many more in this country and around the world. Some were pimped into prostitution, often as children, some entered it under the coercion of extreme poverty, some made what may look like a choice.
I want to tell you briefly about one of the latter. She grew up in a community that was riven with poverty. Her father abandoned the family after her disabled brother was born. Her mother did her best under difficult conditions. There were periods of homelessness, an awful step-father figure. In a school where most children were poor, she suffered the humiliation of being dirt poor.
But she was smart, did well, and got a place at one of the Russell Group universities. Once there she found most of her contemporaries were from well-heeled middle-class families. They wore designer gear and ridiculed the poorer students who wore Primark. She wanted to fit in to this new milieu. She needed the right accoutrements. The ‘sex work is work’ and ‘a woman’s right to choose’ propaganda had swept the university, and she thought why not?
At first, the money was great. She could buy the right bags and coats. But the only way she could bear being intimate with men she didn’t fancy was to turn to drink and drugs. So she developed addictions – that meant she had to keep doing it to pay for them.
Six years later, she was washed up. She wanted out, but had nothing to put on her CV and was a bag of nerves. No one had warned her of these risks, or more accurately put, inevitable consequences. Happily eventually she found a way out. But her story is not uncommon.
So while prostitution solved what at the time seemed like the overwhelming problem of not being able to keep up with the Joneses in her peer group, it caused much more severe, long-term, and life-changing problems than the initial issue she was trying to solve.
But how are young women to negotiate this reality while prostitution is valorised as ‘empowering,’ popular culture is dominated by hyper-consumerism, and they’ve been socialised to put everyone’s needs before their own and to see their own value in terms of pleasing others, particularly men?
We hear from women all over the world who have similar stories. They say that if legislation had clearly positioned prostitution as a form of male violence – as it is recognised by CEDAW General Recommendation 19 – they would have been warned. But living in a country where prostitution is legal or implicitly condoned, like it is here, meant they didn’t have a chance.
Commercial surrogacy in practice
Your proposals will normalise surrogacy, sending out the message to young women that it’s a reasonable way of solving their financial problems.
Student accommodation now costs on average 73% of the funding students can receive through loans and grants. So the majority of students need to find additional sources of income while studying.
Consider a young woman from a disadvantaged background in this situation. She can’t pay her rent. She can’t get enough hours in her casual job at the local supermarket that fit around her lectures and seminars. And then she sees an advert for surrogacy saying she could ‘earn’ around £10,000. It looks like a no-brainer. It would cover her rent for two years. She could study while pregnant. With a bit of luck she could have the baby in the summer holidays. Win win! And the advert says she’d be giving the greatest gift of all to an unfortunate couple.
The ‘implications counselling’ and legal advice won’t tell her how it feels to be pregnant. The exhaustion. How it will change her. How there’s no going back. The shame when people realise what she’s doing. The connection she starts to feel with the baby. The nine long months of feeling it nestling inside her. Moving around. Making her crave oranges which she never cared for before. And then the birth. And right afterwards being flooded with love hormones and they take her baby away. Her vulva is sore and throbbing. Her uterus screaming. The bleeding that continues for weeks. Her breasts getting engorged. Yearning for the baby. The grief. The anger. The rage. The feelings of guilt. How could she have been so stupid? Her emotions are wild. She can’t study. She falls behind with her course. She flunks her exams. Her friends are no help. They say she shouldn’t have done it.
She goes home to her mum and stays in her room. She doesn’t go back and complete her course. She ends up working full time in a supermarket. She bites her lip and pretends it was good. She gave the gift of life. She won’t talk about it again. But of course later when she has a baby of her own, it all comes flooding back.
How can someone deal with this? And that’s assuming it ran a good course and there were no major ‘complications’ and it hasn’t ruined her own fertility.
Do we really care so little in this country for our young women that we will put them through this? That we will suggest that this is a reasonable, safe thing to do?
And how when we’re not allowed to smoke in pubs because our passive smoke might increase the bar staff’s risk of cancer 20 years from now, could the government allow an industry that causes so much predictable and significant damage to women physically, psychologically and politically? That reduces us to baby making machines. That sets women’s rights back centuries.
And we haven’t even mentioned the boyfriends, the brothers, the fathers, who see this nubile young woman as a money tree. Who push her into doing it and take the proceeds. Believe me. This will happen. It happens in prostitution. It’s pretty much the normal pattern in prostitution. It will happen in surrogacy.
The grinding poverty that is now the reality in large parts of this country and the happy clappy narrative that let’s everyone off the hook apart from her, the young woman who never had a chance. Believe me. Men will use coercive control, if not worse, to make their women do this.
Not considering this probability was a dereliction of your duty.
Abortion rights and family formation
As feminists we recognise women’s human right to safe, legal abortion services. This right is founded on the understanding that uncontrolled fertility has a terrible price for women, consigning many to a life of poverty and drudgery.
However, the right to have a child is not the flip side of this right.
We absolutely reject the idea that people have a ‘right’ to reproduce when reproduction in their current circumstances is impossible without surrogacy. There is no right to a child under international law.
The consultation paper emphasises 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 couple, an infertile heterosexual one, or a random single person 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; and unfortunately some people, for a variety of reasons, are infertile. This is reality, not discrimination.
In fact Article 17 explicitly prohibits the use of 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 has to provide you with a child.
Moreover CEDAW makes it clear that any measure to protect maternity cannot be considered discrimination.
We live in a world teaming with unwanted children. There are about four million children living in poverty in the UK. Right now. Is there not something repugnant about deliberately creating children through surrogacy when there are so many children crying and even dying for want of loving parents and basic resources?
Right to family life
Have you ever lived on a dairy farm? Have you ever heard a cow after they take her calf away? She wails in unbearable agony for days. It is truly awful to hear. Eventually she realises wailing is useless. I believe that something in her dies at that point.
The connection between a child and its birth mother and vice versa is profound. You can witness it in all the higher mammals. It persists even in the most difficult circumstances. It is the basis of our survival as a species. It is the foundation of kinship.
The right to family life implies a child has the right to its birth mother. To rip the new-born from its birth mother without a compelling reason is a violation of the child’s right to family life. The child has a right to that illogical and passionate relationship.
Yes, other people can sometimes be adequate replacement parents. But nothing can replace a birth mother. So to deliberately create children who will be ripped from their birth mothers is unethical. And delaying the removal for a few days or months is not the solution. John Bowlby’s research was unequivocal. Disrupting that primary bond in the first three years in particular is likely to cause lifelong difficulties for the child.
The research on adopted children and birth mothers is clear. Even when the adoptive parents are caring and loving, adopted children and their birth mothers suffer long-term negative consequences. There is no reason to believe that in 20 or 30 years time we won’t be faced with research on surrogate mothers and children that shows the same.
Without a birth mother, gametes are waste products. Millions are flushed down the toilet every minute. I do not accept that being the source of the gametes alone makes you a parent. It is the birth mother who transforms the gametes into a baby through a nine-month process that is a form of alchemy.
We are vehemently opposed to the proposal to rob the birth mother of legal parentage at the moment of birth. It not only violates the UN Special Rapporteur’s recommendations but also international standards against baby trafficking. It sets a dangerous precedent for all women, reducing the enormous biological and psychological investment of pregnancy, childbirth, and the postpartum period to the equivalence of a man’s ejaculation or a wad of cash.
The implications of this for all women, and family law are vast. We see no evidence that these implications have been explored in any way.
I’d like to conclude by mentioning a recent article in The Guardian about a single gay man who commissioned a surrogate baby in California. He said:
“As far as midlife crisis purchases go, this is the best one!”
In that off the cuff remark he reveals the truth. He bought the child. And I don’t believe it would have been significantly different if he’d got the baby through your New Pathway. It will enable people to buy babies.
But there’s more that’s relevant. He balked at paying the actual costs of childcare, and instead hired an au pair to take care of the child and provide him with companionship for £85 a week. Does that not make your blood run cold? He buys a baby and then hires someone, presumably a young woman from a poor country, to take care of it, for less than £2 an hour.
This is the crudest exploitation of women’s labour on top of the exploitation of women’s reproductive capacities. These are not unrelated issues and nor are they isolated incidents.
Commodifying women and children damages the individuals concerned. But the damage goes much deeper. It changes the way we understand women, children, society, and our mutual responsibilities.
Commodifying children changes our understanding of a child from a unique member of a family and community, to whom we all share a responsibility – into seeing the child as the private property of one or two individuals, of no business to anyone else. This implicitly justifies society withdrawing collective resources from women and children, and the destruction of the social safety net. Commodifying children erodes the fabric of our society.
Commodifying women, already far advanced, largely thanks to the global prostitution and pornography industries, reduces women to second class status.
Intellectually you may object and say no, of course women are not second class. But the evidence is all around us.
Why otherwise did you not consider the parallels with live kidney harvesting? Why otherwise did you not consider the parallels with advertising tobacco? Why otherwise did you not consult with women’s rights and maternal heath organisations before you drew up the proposals? Why otherwise did you not have a single question about the particular impact on women’s rights and welfare? Why otherwise did you make the consultation inaccessible to ordinary women who clearly have a stake in this?
As public servants you have an absolute duty to ensure that your proposals do not contribute to these corrosive narratives. You have an absolute duty to understand the real impact of your proposals on society as a whole and its most vulnerable members, and whether your proposals will reduce or increase the gaping inequality between the sexes, and the crippling poverty so many women and children endure.
Women are human beings. Not baby machines or drudges. Their human rights must be actively honoured and protected.
We believe that the only ethical way forward is for you to go back to the drawing board, this time centring the human rights of women and children, and addressing all the issues we have raised, including in our open letter.
Anna Fisher, 13 February 2020
Share your story
We believe there are many women who are suffering in silence after having an unhappy, damaging or traumatic experience of ‘donating’ their eggs or being a ‘surrogate’ mother for the benefit of others. If would like to share your story anonymously, we’d love to hear from you.