By Elizabeth Purslow
This article is based on a presentation that Liz gave to the UK law commissioners at a meeting on 13 February 2020 about their proposals for commercial-style surrogacy in the UK.
I was a midwife for nearly 20 years and have a postgraduate qualification in obstetric ultrasound. I currently work in the NHS as a nurse, in an unrelated area. However, once a midwife, always a midwife, and I’ve retained my interest in mothers and babies, and maternity trends generally.
The law commissioner in charge of the surrogacy project, Professor Hopkins, claimed on the recent Victoria Derbyshire show that one of the key aims of the proposals is to keep the parties to surrogacy agreements ‘safe,’ and this was repeated in the consultation documents. But I want to show that these assertions don’t add up. I will first talk about the risks of surrogate pregnancies and childbirth and will go on to discuss egg harvesting and implications arising out of conflicts of interest and safeguarding concerns.
Surrogacy pregnancies are high risk
Surrogacy pregnancies are always high risk – for a number of reasons. Most are based on ‘donor’ eggs, which greatly increases the risks of obstetric complications, such as pregnancy-induced hypertension (PIH), small birthweight, gestational diabetes, intrauterine death, pre-term delivery, and Caesarean section. These additional risks are thought to be connected to immunological intolerance between the mother and the foetus (which does not have her DNA).
An American study shows that on average a surrogacy (singleton or twin) pregnancy costs 26 times more than a non-surrogacy pregnancy – because of a higher Caesarean section rate, longer hospital stays, and admissions to the new-born intensive care unit (NICU).
NICU cots are already in extremely short supply in the UK, resulting in babies sometimes being transferred long distances – for example, in one case from the South West of England to Edinburgh, which had the only available NICU cot at the time.
Another risk factor in surrogacy pregnancies is the greater frequency of multiple births. The Human Fertilisation and Embryology Authority (HFEA) summarises the risks of multiple births as a doubled maternal mortality rate, pre-eclamptic toxaemia (PET), obstetric haemorrhage, gestational diabetes, prematurity, lower gestational weight, and cerebral palsy. Because of this, the HFEA instigated a ‘One at a time’ campaign that successfully reduced the IVF multiple birth rate in the ten years to 2017.
In spite of these significant and known risks, twins are inexplicably treated as some kind of optional extra in surrogacy – including in the law commissioners proposals. For example Point 3.65 of the consultation paper states that:
“The surrogacy agreement might provide for additional fixed payments to the surrogate for multiple births, a Caesarean section, and where the surrogate has had to undergo medical procedures such as a hysterectomy.”
The casual nature of this brief mention demonstrates a complete lack of understanding of the serious risks and trauma that women will be exposed to.
During my 20 years as a midwife, I experienced several women having a life threatening haemorrhage after delivery. It was terrifying – the astonishing amount of blood means she can bleed to death incredibly quickly. I witnessed a woman dying under these circumstances. It was one of the worst things of my career. Even if she survives, there are a range of long-term serious consequences, including Sheehan syndrome.
During a major obstetric haemorrhage, the resources of the delivery ward are rightly focused on attempting to save the woman’s life. In the current environment of underfunding and under-resourcing of NHS maternity services, this can put other women and staff at risk. For example, one midwife might be left attempting to care for several labouring women at once.
Emergency hysterectomy is sometimes the only possibility of saving the woman’s life. Obstetric consultants are no longer required to be qualified in this procedure, so a general or gynaecological surgeon might have to be called in, possibly leading to disruption of other planned surgery.
Quite apart from the devastating implications for the individual women and their families, any increase in surrogacy will have a considerable and predictable financial impact on the NHS and will divert already overstretched resources away from other labouring women, and even general surgical patients.
Other risk factors include maternal age and parity (the number of times a woman has given birth). For example, the statistical risk of maternal death doubles at age 35 and trebles at 40. Similarly the risks increase with parity.
The law commissioners do not appear to have understood these extensive risks and their implications, let alone to have proposed appropriate protective steps – in spite of their stated aim of making surrogacy safer.
The proposal for ‘implications counselling’ will do little, if anything, to mitigate the very considerable risks for women undergoing a surrogacy pregnancy. Evidence from numerous published cases shows that counselling is unlikely to provide women with any realistic protection.
Some of the factors that contribute to the additional risks of surrogacy could be reduced or prevented by legislative measures, such as allowing only a single embryo to be transferred, introducing age limits for surrogate mothers, and limiting the number of surrogate pregnancies that are allowed.
Setting such standards in law would emphasise the risks and encourage prospective commissioning parents and surrogate mothers to exercise more caution. Agencies and commissioning parents would find it less easy to take advantage of vulnerable women and those who appear to have some sort of addiction to being a surrogate mother if legislation limited surrogacy to an experience women could not undertake more than once in a lifetime.
Conflicts of interests
Under the proposed ‘new pathway,’ commissioning parents will become the legal parents at the moment the child is born. This will inevitably lead to the commissioning parents assuming ownership in utero – leading to conflicts of interests, which will put additional pressures on the midwifery and NHS staff.
The law commissioners appear not to have considered these implications at all. Current hospital policies are clear – the birth mother is the patient to whom the staff owe their duty of care and all rights remain with her. Any change to this understanding would be a very grave violation of her human rights.
But if the proposals go ahead everything will become murky. The consultation paper implies that commissioning parents should be able to attend ultrasound scans and antenatal hospital appointments, and mentions commissioning parents making complaints about hospitals preventing them from doing so. But the reality is not as straightforward as the paper would suggest and such complaints illustrate the sense of entitlement and demands commissioning parents are prone to making – even when they are against the law as it currently stands and the hospital policy.
My personal view is that it would never be appropriate for commissioning parents to attend ultrasound screenings because of the real conflict of interests.
Suppose the scan suggests that the baby will have a condition that is not life threatening or for which corrective surgery is well developed – such as a cleft lip and palette – and the commissioning parents want an abortion.
If the commissioning parents are in the room when the birth mother is told about this risk, it will make it very difficult for her to make a dispassionate decision about what to do. It will compromise her independent decision making and will potentially put enormous pressure on the hospital staff. Similar situations could arise throughout the pregnancy and birthing.
Are the law commissioners suggesting that the commissioning parents become the legal parents before the umbilical cord is cut and if so, who makes the decisions about when the cord is cut? What about the delivery of the placenta, which is foetal tissue?
There is an inherent power imbalance in surrogacy with commissioning parents tending to be wealthier, more educated, and more used to getting what they want than the women undertaking the pregnancy for them.
I attended two of the consultation events and the entitlement of some of the prospective commissioning parents present was astonishing. One man argued that there should be no limits on the number of surrogacy pregnancies a woman can undertake because some women have 15 children of their own. His lack of awareness and concern for the implications for women was chilling and it does make you wonder about his suitability as a parent.
People like this can be very demanding to deal with. They beat you down, and take up so much of your time that you will agree to almost anything just to make them go away, so that you can get on with your work looking after the other patients in your care.
The NHS has a strong culture of safeguarding, midwives are trained to be advocates for the women in their care. I would expect strong resistance from NHS staff to this type of behaviour but there is a risk that under such circumstances surrogate mothers can’t be assured that NHS staff will provide adequate advocacy for them.
The implications for hospital staff of dealing with such commissioning parents during a complicated labour and delivery are considerable, and are very different from the norm where the woman’s birth companion is invariably focused on her well being no less than the baby’s.
We hear about many terrible safeguarding cases from other countries, including one in Pennsylvania where a young man commissioned a surrogate baby, who died six weeks later from severe physical abuse, and Peter Truong and Mark Newton who trafficked a new born baby boy into the USA and subjected him to six years of sexual abuse, while the well-publicised case of Baby Gammy shows the dangers of failure to do the most basic of background checks.
There is no reason to believe that the UK would be immune to such developments if the proposals go ahead.
Under current policies, midwives and other health care staff are trained to be alert to child protection issues. But the potential for coercion, human trafficking, and other safeguarding factors are greatly increased in surrogacy, especially if the proposals for commercial-style surrogacy go ahead.
The law commissioners have failed to address these issues adequately.
It simply is not good enough that midwives are expected to deal with these additional risk factors without any additional training or resources. There needs to be a robust screening of commissioning parents similar to the process for adoptive parents in advance of commencing the surrogacy process.
Commissioning parents abandoning the child
The consultation paper claims that giving the commissioning parents legal parenthood from the moment of birth will somehow protect the surrogate mother if they reject the baby. But this is based on a misconception.
I have known a woman get off the delivery bed after a forceps delivery and walk out of the hospital. When something like this happens, the baby is cared for by the hospital while social services arrange foster care, and eventually, if necessary, adoption.
It is very easy to reject a baby at birth in the UK, at least from a practical point of view. This is alluded to in paragraph 8.24, which notes that should the commissioning parents reject the baby, the situation is no different from the situation if parents in a normal pregnancy reject the baby. Assigning legal parenthood to the commissioning parents at birth offers the surrogate mother no additional protection. Rather it strips her of the protections currently in place.
As mentioned earlier, the vast majority of surrogacy pregnancies are based on ‘donor’ eggs. Any increase in surrogacy in the UK will therefore require an increase in the availability of ‘donor’ eggs – which will inevitably lead to an increase in advertising (which is already allowed) targeted at young women.
While egg harvesting is mostly carried out by private clinics in the UK, when things go wrong, the NHS picks up the pieces.
One of the major risks of egg harvesting is Ovarian Hyper-stimulation Syndrome (OHSS) which can be life threatening. To reduce this risk, the current trend is to keep ovarian stimulation to an absolute minimum when harvesting a woman’s eggs for her own IVF. However, when harvesting eggs commercially, the imperative is to maximise the stimulation to maximise the harvest – leading to much greater risks for the women involved.
In one hospital trust in the Southwest of England, the number of inpatient admissions for OHSS more or less doubled year on year for the last three years. If the law commissioners’ proposals go ahead, we are likely to see much more of this – with hugely increased pressure on the already stretched NHS resources, and devastating consequences for the women involved.
It is clear that currently there is little attempt to collect data on surrogacy and egg harvesting in the UK and their long-term outcomes.
This must be addressed before the implementation of any proposals that are likely to increase rates of surrogacy and commercial egg harvesting in the UK. Specifically, robust and coordinated measures must be put in place to collect and monitor data on egg harvesting, and surrogacy pregnancies and babies, and the short and long-term outcomes.
The law commissioners’ proposals fail to protect egg donors, and surrogate mothers and their babies, or to keep them safe. This is utterly reprehensible, and it is disgracefully irresponsible to burden the NHS with all the additional demands that the expected increase in surrogacy will inevitably entail. The cost to the NHS cannot be understated. As the NHS resources are stretched ever further, this will impact everyone using NHS services, but particularly women using maternity services and is likely to reduce the level of service all women can expect.
In any other arena with such predictable and grave risks, we would expect legislation to provide robust protection and to mitigate those risks.
- Surrogacy: A human rights violation
- I was an altruistic surrogate and am now against ALL surrogacy
- Surrogacy: How much is a woman worth?
Share your story
We believe that 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 this has happened to you and you’d like to share your story anonymously, please see our Share Your Story page.