This is a personal account of a meeting Nordic Model Now! had with the UK law commissioners about their proposals for commercial-style surrogacy. The meeting took place on Thursday 13 February 2020 at their London offices.
Meeting the law commissioners about their proposals for commercial-style surrogacy in the UK
We’d been warned that the law commissioners were probably simply seeking to cover their backs – so that they could honestly say that they had ‘consulted with’ another women’s organisation. The challenge for us was to turn it into more than an exercise and to get them to listen and take on board our many very serious concerns.
After we’d been through the terrifying security process and been ushered into the small meeting room, we all introduced ourselves.
For the Law Commission, there was Professor Nicolas Hopkins, the expert in property law who’s in charge of the surrogacy project, Spencer Clarke, a lawyer on the project and an advocate for the LGBT community, Professor Penney Lewis, who has recently been appointed as a law commissioner for criminal law, but who has expertise in medical law and is ‘shadowing’ the surrogacy project, and Verity Bell, a research assistant.
Representing Nordic Model Now! were Elizabeth (Liz) Purslow, who was a midwife for 20 years, Dr Sarah Smith, a medical doctor, Mrs A, a survivor of surrogacy, and myself (Anna Fisher) and Susannah Oldham.
Professor Hopkins started by acknowledging the gulf between us – that we want a total ban on surrogacy whereas they, he said, are working under instructions from the Department of Health and Social Care, which supports surrogacy as a way of ‘building a family.’ However, he claimed, they wanted to hear what we had to say.
The feminist and human rights position
I went first, with a presentation covering a wide range of issues, including human rights implications, our opposition to the commissioning parents gaining legal parenthood at the moment of birth, the impossibility of women giving free and informed consent in the current environment of extreme poverty and inequality, the likely impact on marginalised and disadvantaged women, and that men will pimp women into surrogacy just like they do into prostitution.
I made comparisons with harvesting kidneys from living people and questioned why the law commissioners hadn’t considered these parallels, given that it is almost universally recognised that it can never be ethical to pay people in poverty to give up a kidney – and I questioned why, when we don’t allow advertising for tobacco, they would think it reasonable to remove all restrictions on advertising surrogacy, when it also causes significant and predictable harm, including premature death. I suggested that not considering these parallels was because women still do not have full human rights in practice – largely because they are for sale as commodities in the sex trade.
When I finished, Professor Lewis mentioned that she’s a member of the Human Tissue Authority and one of her roles is to oversee live organ ‘donations.’ More or less every week, she said, she reviews and approves organ ‘donations’ from living individuals.
In response I said that this demonstrates the huge discrepancy of oversight between live kidney harvesting, and egg harvesting and surrogacy. How can this be justified? I got the impression that Professor Lewis recognised the significance of this discrepancy.
Medical risks, and costs and impact on the NHS
Liz then began her presentation on the significant and predictable medical and health risks, not only for the women and babies involved, but also for the NHS and other women using its maternity services.
She explained that all surrogacy pregnancies are high risk and gave some graphic and distressing examples of the kind of complications that arise much more frequently in surrogacy pregnancies. Any increase in surrogacy will therefore result in an increase in the frequency of catastrophic outcomes – putting extra pressure on the already struggling NHS maternity services, and diverting stretched resources away from other women.
She also talked about potential conflicts of interests, and safeguarding of the birth mother and baby. If the commissioning parents become the legal parents at the moment of birth, they are likely to feel even more entitled to ‘ownership’ of the foetus than they already do, and would likely seek to control the birth mother’s medical care during the pregnancy, labour and delivery, with worrying consequences for the birth mother and problems for NHS staff.
She brilliantly illustrated that it’s clear that the law commissioners have failed to understand the potential for harm that their proposals would open up, and the predictable additional costs and pressure this would put on the NHS.
Did I detect a degree of shock in Professor Hopkins as Liz spoke? I’m not sure. But he certainly asked her to give him the printouts she referred to during her presentation.
The surrogacy survivor
Next up was Mrs A. She’d explained during the introductions that she would cry – because her experience of surrogacy was extremely traumatic and harrowing. However, she wanted to be there to explain the reality to the law commissioners, and they’d just have to deal with her tears.
She covered much of the ground in I was an altruistic surrogate and am now against ALL surrogacy, and then some. It was moving and powerful and everyone in the room appeared to be deeply engaged.
She explained how a combination of low self esteem and a lack of understanding of her own worth, contributed to what seemed at the time like an informed choice, but in retrospect was not.
She said she spent two years researching surrogacy and talking to other women who’d been through it before agreeing to help her close friends in this way. But even so, she didn’t understand she’d have to undergo aggressive hormone treatment prior to the embryos being implanted or what the risks of this would be.
She felt she couldn’t change her mind or back out, because by this time the commissioning parents had spent a large sum sourcing eggs from a poor student in Eastern Europe.
She was asked if two embryos could be implanted “to increase the chances” of success. The commissioning father said that having twins “would be like winning the jackpot.” With this pressure on her, Mrs A felt unable to say no and felt terrible guilt for reducing their chances after all the money they had spent.
She agreed despite having little idea of the very heavy toll carrying and delivering twins would have on her body. In the event both embryos successfully implanted and the twin pregnancy was extremely gruelling and Mrs A had to take early maternity leave from her career, and to use a mobility scooter towards the latter part of the pregnancy. This impacted not only on her, but her own children who she struggled to look after, and her husband who had to take significant annual leave.
She realises she’s not unique and large numbers of women would be vulnerable to making a similar decision for similar reasons under the law commissioners’ proposals. She emphasised that the law commissioners must take notice of this vulnerability of women – which is largely a consequence of growing up and living in a world where women are objectified, which subtly grooms them to be subservient. She now doesn’t believe any woman should ever be put in the position of being a ‘surrogate’ mother.
She talked at some length about how the commissioning parents felt the unborn babies were ‘theirs’ and that they were therefore entitled to make medical decisions during the pregnancy. There were early disagreements about how and where Mrs A would give birth and this developed into quite an unpleasant battle – even though this was an ‘altruistic’ arrangement and they had been long-term friends.
This backs up everything that Liz had said earlier about conflicts of interests and the extraordinary and inappropriate sense of entitlement that is common in commissioning parents.
Very clear procedures and guidelines must be put in place before any legislation is introduced that is likely to increase the numbers of surrogacy arrangements. These guidelines must emphasise that the commissioning parents have no rights to dictate the birth mother’s treatment or even to be present at scans and other appointments – which some commissioning parents are now campaigning for.
Mrs A asked whether the law commissioners had visited or researched any of the countries that have implemented a total ban, and she made the important distinction between countries that have banned surrogacy for religious reasons and those where the ban has come out of feminist and human rights arguments. She said it was important that the law commissioners research and understand the feminist critique of surrogacy.
Professor Hopkins responded by saying they had visited Ukraine and talked to a number of individuals there. Ukraine is widely recognised as the European wild west of commercial surrogacy. So not a country that has a total ban – or even a partial one. It was hard to believe that he was being serious.
In response to further questions about who they’d talked to from countries that have implemented a ban, he said that they’d attended conferences in Cambridge that had included academics looking at surrogacy in various countries. We pointed out that much academic research into the sex trade is funded by bodies with vested interests, and given that surrogacy is now a multi-billion dollar industry, there’s nothing to suggest that academic research into surrogacy is any different.
He also said they’d talked to a number of surrogate mothers at these conferences. We explained that it was unlikely that women who’d had a bad experience of surrogacy would attend such a conference. The way surrogacy is framed as a woman’s choice and agency implicitly blames her for anything that goes wrong. As a result many women feel ashamed and find it difficult to speak about their experiences honestly. This means that the law commissioners had inevitably talked to an unrepresentative sample.
I said a woman had signed our open letter with the comment, “I have been a surrogate and it has destroyed my life.” Professor Hopkins said he’d seen that comment.
I explained we hadn’t collected contact details so we weren’t able to get in touch with her. But given the letter was only open for signatures for about three days and we had no budget for advertising, we feel that it was significant that there were responses from two women who’d had a terrible experience.
Professor Lewis leant forward and thanked Mrs A for her testimony and said how valuable it was, and she acknowledged that such negative experiences are missing from the public discourse.
The GP’s perspective
Dr Sarah Smith spoke next. She said that in surrogacy, a woman undergoes a biological process that carries significant personal risk, including of death, for the benefit of someone else – and, as Liz had explained so well, the risks are much higher than if she were doing it for herself.
The consultation paper suggests that GPs will be required to provide a letter of recommendation for women who want to become surrogate mothers. Had they consulted with a wide range of GPs on this? She wouldn’t expect many of them to be happy about it.
How will it sit within the ethical principles of beneficence and non-maleficence that all doctors are bound by?
The principle of beneficence means that procedures must be of benefit to the patient and non-maleficence means that they must not harm the patient or anyone else. How can advising a woman to undergo a surrogacy pregnancy conform to these principles? How can recommending a woman for it conform to these principles? These questions hung in the air as the inescapable answer silently screamed its presence.
What does she gain from this? What are the benefits for her?
Here was a question that Professor Hopkins felt he could answer. He said the ‘surrogates’ they have talked to have given three different answers: The desire to help someone else with a family, a woman who didn’t want children of her own but wanted to experience pregnancy and childbirth, and a lesbian who wanted to help a gay couple have a family.
Sarah agreed that these were well meaning intentions, but are they really justifications for women undergoing such significant risks?
She mentions the strict rules governing counselling and refers to the ‘implications counselling’ the law commissioners are proposing. How can a counsellor ethically advise a woman to undergo something that would put her very life at risk when there’s no benefit to her other than a vague feel-good factor of helping someone else?
She asked, How much is a woman worth?
We’re running out of time. The meeting has significantly overrun. Mrs A has already left to get back to pick up her children. Things are getting tense and we all start chipping in.
We ask how they could justify ending the ban on advertising. Professor Hopkins said it was currently unfair because surrogacy agencies based in the UK are not allowed to put a simple advert on Facebook but agencies in other countries can. There wasn’t time for a proper discussion on this, but his answer shows a lack of understanding how Facebook adverts work.
A surrogacy agency in Cambodia or California that is advertising for women to rent their wombs is unlikely to have much allure for women in the UK – if they even see the ad, which is unlikely, because Facebook pushes adverts into people’s feeds based on what they know about those people. So the adverts that he is proposing to unleash won’t simply sit there on some advertising board that people have to actively seek out – they will be pushed onto the timelines of people that Facebook knows are the correct demographic – female, young, below average income, and based in the UK.
We express our concern that if the proposals are implemented, the UK will become a surrogacy tourist destination, particularly as the NHS will mean the costs are likely to be much lower than in places with private healthcare systems, such as California. Professor Hopkins assured us that this would not be possible under the proposals. But this is frankly far fetched, given that paragraph 3.67 of the consultation paper and Question 100 both suggest that surrogacy tourism is already taking place in the UK under the current legislation.
We ask how putting women through the risks of surrogacy can be justified when there are so many unwanted children in the world.
Professor Hopkins says that adoption and surrogacy are completely different and people want a genetic link to their children. That may be, I say, but he is looking at children as if they are a commodity or property that people can buy.
Professor Hopkins replies that infertility causes tremendous psychological suffering.
His words echoed round the room and it was as if time stood still for a moment. He’d sat through a couple of solid hours of evidence of the tremendous damage that surrogacy causes women and children. He’d listened to Mrs A talking about the lifelong medical and psychological harms it has caused her. He’d heard Liz describing a major obstetric haemorrhage and other harrowing emergencies that surrogate mothers are at greatly increased risk of.
Yet here he was suggesting that all this damage and suffering is justified because infertile people ‘suffer’ too. But disappointments are part of human life, and there are many things you can do to find solace and meaning – they could find a therapist, or get a dog, or a hobby, or adopt a child, or help out at a scheme for poor kids, or a million other things that don’t harm anyone else.
Susannah, who had been heroically making notes up until this point, put down her pen and tried to explain that taking a child from its mother at birth is a violation of all the natural principles.
Professor Hopkins got tense and said he was going to bring the meeting to a close. He said this brings us back to the gulf between us. We were entitled to our own opinions, he said, but he was working on instructions from the government.
But don’t public servants have a duty to be independent? To advise the government impartially? To help them see when their proposals (like building a bridge from Scotland to Northern Ireland over a gigantic dump of WW2 explosives, for example) are misguided? Or in violation of international law? Or stupid even?
Susannah continued trying to explain her point of view. Professor Hopkins said he was late for his next meeting. The rest of us started gathering up our things. Professor Hopkins stood up. He said that the ‘surrogates’ they had spoken to would profoundly object to our description that the babies had been ripped from them.
But this is how some people born of surrogacy themselves describe it.
And of course this truth must be hidden if surrogacy is to thrive as an industry. The women renting their wombs have to be groomed and convinced that what they are doing is a GOOD THING, a NOBLE THING. They have to learn to deny all the evidence that their own body is giving them. They have to dissociate. Otherwise they couldn’t do it. We see something similar in the sex trade.
We eventually stumbled from the building and into a cab that took us to Sarah’s hotel, where we sat in the bar drinking wine and going over the meeting in forensic detail. Did we do OK? Had we changed anything for the women in the UK? Would Professor Hopkins and Spencer Clarke understand how inappropriate their proposals are? Why are two men who appear to have little knowledge, experience or even interest, it seems, in the reality of women and children’s lives, in charge of developing policy and legislation that will impact the women and children in this country so profoundly?
I asked the others if they had read Deborah Cameron’s recent article on Gentlemanly Sexism? Doesn’t it just sum up the attitudes so present in the meeting?
But one thing I think we can say with some certainty is that the law commissioners won’t easily forget their afternoon with Nordic Model Now!
- Surrogacy: A human rights violation
- Surrogacy: Medical risks, and costs and implications for the NHS
- I was an altruistic surrogate and am now against ALL surrogacy
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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 you would like to share your story anonymously, we’d love to hear from you.