This article is based on Elizabeth Purslow’s notes for her talk at the ‘Equality between men and women and the choice to become a surrogate mother’ webinar on 19 March 2022, which was organised by the International Coalition for the Abolition of Surrogate Motherhood (CIAMS) as an NGO CSW parallel event. A recording of the webinar is available on YouTube.
Introduction
Hello, Good Evening. My name is Liz. I work in the NHS as a nurse, but previously I was a midwife for twenty years.
In the UK there are plans for new laws relating to surrogacy. The official position is that the government supports surrogacy as part of a range of “assisted conception options”.
In June 2019 the UK Law Commission opened a public consultation on changes to the surrogacy laws. This ran until October 2019 and had 118 questions and was accompanied by a 500-page paper explaining their proposals. The Law Commission also held ten public events giving people an opportunity to discuss their proposals and ask questions about them.
There was a “huge” response, with over 650 written replies to the consultation questions and other more general responses by email and formal letters from organisations and members of the public. The responses are being analysed and it is expected that the Law Commission will present their report and a draft bill setting out proposed new legislation to parliament this autumn (2022).
The 13th Programme of Law Reform
But first, some background. In July 2016, three years before the consultation, the Law Commissioners launched another consultation – on its 13th Programme of Law Reform – to seek the public’s views on the issues and areas of law most in need of reform. The consultation received the largest ever volume of responses with over 1,300 submissions covering 222 different topics – of which a significant number, 242, were related to surrogacy.
Not surprisingly given that they were almost exclusively from organisations and individuals with indisputable vested interests, such as law firms, fertility experts, surrogate mothers, and commissioning parents, almost all of the surrogacy-related submissions argued that the current law is not fit for purpose and lobbied for reform.
In response, the Law Commission added surrogacy to its 13th Programme for Reform and obtained approval and funding from the Department of Health and Social care for the project.
The current law in the UK
The law on surrogacy in the UK was first formalised in the Surrogacy Arrangements Act 1985, which was introduced in something of a rush following widespread public condemnation of Kim Cotton, who contracted to have a baby for an American couple in exchange for £6,500. Further changes were introduced in the Human Fertilisation and Embryology Acts of 1990 and 2008.
At the time of the 1985 Act, there was a determination to ban commercial surrogacy, but also a feeling that some surrogacy would happen anyway, and so rather than a total ban, altruistic surrogacy should be allowed under certain conditions.
The 1985 Act created criminal offences in relation to commercial surrogacy. Commercial agencies and brokers are banned, and it is illegal to advertise for a surrogate mother or for a woman to advertise her services. Any payments should be for “reasonable” expenses only. The Act established that the surrogate mother is always the legal mother at birth, but legal parenthood can be transferred to the commissioning parents after the birth through a parental order.
Over the years there have been various changes, particularly regarding the scope of who can be a commissioning parent. Initially only married, opposite sex, couples could apply for a parental order. Same sex couples, civil partners, and couples in an enduring family relationship were permitted in 2010, and in 2019 single people also became eligible.
The main conditions of the law today are that surrogacy remains altruistic (at least in theory), with only “reasonable expenses” allowed to be paid. (I’ll come back to this later.) Surrogacy contracts are unenforceable and the ban on advertising and commercial brokering remains. The surrogate mother is the legal mother when the baby is born and if she is married, her husband becomes the legal father unless he formally opts out by completing a form. A parental order is needed before the commissioning parents obtain legal parenthood, and they must apply for this no sooner than six weeks after the birth and within six months.
What are the numbers?
The numbers engaging in surrogacy in the UK remain small, but have been steadily increasing. It is hard to know the exact figures as surrogate births are not recorded and statistics are gathered from various sources, but the best indication comes from the number of parental orders granted. These have increased from 117 in 2011 to 430 in 2020, as shown in the chart above.
Of these, about half are international surrogacy arrangements undertaken by British residents abroad, particularly in the USA. This means that the number of surrogacy births taking place in the UK remains quite low.
Who are the commissioning parents?
Data from surrogacy organisations shows there has been a significant increase in the number of male same sex couples using surrogacy in recent years. Both COTS and Brilliant Beginnings (two not-for-profit surrogacy agencies) report that about 50% of the commissioning parents they work with are now same sex couples.
Since 2018 there have been 350 parental order applications from couples in a same-sex relationship, rising from 69 in 2014 to 139 in 2019. Single parent applications are also increasing and in 2019, the first year that single commissioning parent surrogacy was legal in the UK, there were 38 applications.
Traditional vs. gestational surrogacy
In countries that allow commercial surrogacy, nearly all surrogate pregnancies are “gestational” – which means that the surrogate mother is not genetically related to the baby, having been implanted with an embryo created from either a donor egg or an egg from the commissioning mother. It is said that surrogate mothers prefer not to be related to the baby as this helps her to feel disconnected to the baby, as it “isn’t hers” and commissioning parents also want to separate the mother from the baby.
However, in the UK a significant proportion of surrogacy arrangements are “traditional” – meaning that the pregnancy develops from the surrogate mother’s egg. Overall, these seem to be about one third of surrogacy arrangements that take place in the UK.
Surrogate mothers like this as they can self-inseminate at home and do not have to go through the process of IVF. Commissioning parents like it as there is a considerable financial saving if IVF is not required.
There is also a substantial community of “independent” surrogate arrangements – without the assistance of lawyers or one of the surrogacy organisations. For example, Hope Surrogacy Support Service, which provides help and advice to people navigating surrogacy independently, reported that “in 2017 we had 33 surrogate births and in 2018 we have 28 babies on the list”.
These independent arrangements involve surrogate mothers and commissioning parents making contact informally, perhaps via social media and apps, with insemination typically being done at home. These are risky arrangements, legally, medically and also for the babies as there is no safeguarding.
Examples of how things can go wrong
The mainstream media tends to focus on the apparent success stories – but in reality things can and do go wrong. For example, in 2014, a woman posted on Mumsnet about how she had entered into an informal arrangement with two gay friends. A week or so before the baby was due, her friend, who was the father of the baby, explained that he and his partner were splitting up. He was going to move back in with his mother whose home was an unsuitable environment for a baby. He asked the surrogate mother to keep the baby for a few months until he sorted himself out.
Although she didn’t subsequently report the outcome in the Mumsnet forum, she seemed to have decided that she could not give up a baby after caring for it over a period of months and was very definite that ultimately she was responsible for the welfare of the baby. She was planning to keep the baby herself, with the possibility of some future access arrangement for the father. She was a single mother, just sorting herself out financially and with a new job and had not planned to become a mother to another child at that stage in her life. She was very upset with how the father had so little understanding of the needs of the baby and her own needs as a mother.
Another example is the case of RE: Z 2016. This involved a gay couple who made contact with the surrogate mother over Facebook. After just one meeting they presented her with a typed commercial surrogacy agreement they had found on the internet. It transpired that she had learning difficulties, and was extremely suggestible and vulnerable. She had not been able to read or understand the agreement, and had not understood the gravity or the reality of what she had agreed to do.
When the surrogate mother decided to keep the baby, the case ended up in court. It turned out the couple already had twins by another woman with whom the relationship had completely broken down. The couple were heavily criticised by the judge who made an order that Z should remain living with the surrogate mother, with occasional contact with the commissioning parents.
The Law Commission Proposals
The Law Commission’s consultation paper was extensive, but it approached the issue from a transactional standpoint. This is perhaps not surprising, considering the law commissioner in charge of the project, Professor Nick Hopkins, is a specialist in property law.
The key proposal is to change the process of obtaining legal parenthood with the introduction of a “new pathway”, which will enable commissioning parents to become the legal parents at the moment of birth. There will be certain conditions to be met, surrogacy will remain “altruistic”, and contracts will not be legally binding.
This image, from the Law Commission’s summary paper, provides a visual representation of the process.
The UN Special Rapporteur’s recommendations
The proposal for this “new pathway” is in direct contradiction with the recommendations of the United Nations Special Rapporteur on the sale and sexual exploitation of children, who emphasises the importance of safeguards to protect the rights of children and the prevention of the sale of children and the exploitation of vulnerable women.
The recommendations specify that states must:
“Ensure that in all parentage and parental responsibility decisions involving a surrogacy arrangement, a court or competent authority makes a post-birth best interests of the child determination, which should be the paramount consideration”. [Emphasis added]
Advice from CAFCASS
The proposal for the “new pathway” also flies in the face of the advice from CAFCASS (the Children and Family Court Advisory and Support Service).
Part of the parental order process involves the appointment of a CAFCASS Parental Order Reporter, who is a fully qualified social worker, to investigate the circumstances of the case and consider the child’s best interests “freely and unconditionally”. So CAFCASS as a whole has considerable experience in this area and provides important protections to both the child and the surrogate mother.
In their submission to the Law Commission’s consultation on its 13th Programme for Reform, CAFCASS said:
“We believe that the current legislation on legal parenthood and post-birth parental orders should remain. The parental order process takes place after birth and involves qualified social work assessments in order to provide a valuable safeguard for the best interests of the child, as well as protection against potential exploitation of the surrogate mother or commissioning parents.”
Removing the post-birth parental order process and giving parental rights at birth, as proposed, would eradicate those safeguards.
The Law Commission recommends that surrogacy should be contracted through registered non-profit agencies, and that there should be counselling and “light touch” checks on the commissioning parents and the surrogate mother (and her partner if she has one). These would amount in practice to little more than a criminal records check.
Language and the status of women
There is also the broader issue of language and the status of the woman who has given birth in law. In the case of Freddy McConnell, a transman who went to the high court to try to be registered as the father of the baby Freddy had given birth to, the judge concluded “a person who becomes pregnant and gives birth to a child is that child’s mother”.
The state of pregnancy and maternity are protected characteristics under the Equality Act 2010.
If a woman who has given birth is not afforded the legal status of mother, will this have possible implications for all women and mothers, and the protected characteristic of maternity?
Advertising free for all
Other key proposals include lifting the current ban on advertising relating to surrogacy.
In the USA, the big tech companies flood young women’s social media feeds with tempting advertisements extolling the joy of “Making dreams come true”, “to help a family have a precious gift” and … “generous compensation up to $60,000” – like the ones from Extraordinary Conceptions shown here.
This is what we are likely to see in the UK if the Law Commissioners get their way – or at least what young women are likely to see. Anyone who isn’t in that target demographic simply won’t see them on their social media feeds and so will be oblivious to the potential impact it is likely to have on young women.
The Law Commission’s proposals are for a minimum age for entering a surrogacy arrangement of just 18 years – which will mean that young women will be at risk of being sucked into surrogacy without really understanding the implications. There is also no requirement that a surrogate mother should already have given birth at least once. I do not believe it is possible for a woman to give informed consent to surrogacy if she has no prior experience or knowledge of childbirth and motherhood. It is shocking to think that teenagers just out of school could become surrogate mothers.
Payments
Whilst the Law Commission states that surrogacy will continue to be “altruistic” with no payment other than “reasonable expenses” to the surrogate mother, it is clear that the interpretation of “expenses” is generous, if not imaginative. It is accepted that in reality there is a “going rate” which is somewhere around £15,000. The consultation paper states that the median payment for domestic surrogacy arrangements was £14,795 with five cases involving payments of over £20,000. (Pages 327-330).
There is in fact plenty of evidence that surrogate mothers do enter surrogacy arrangements for financial reasons. As far back as 1994 a study of 19 surrogate mothers found that “Financial motives were usually present. […] [One woman] explained that surrogacy provided an escape from the poverty trap by funding a higher education course and the hope of more socially acceptable employment prospects”. Another said “I needed some money and it seemed an easy way to gain a large sum”.
Meanwhile CAFCASS noted:
“Our experience in parental order cases show that the rules around reasonable expenses paid to surrogate mothers are unclear and that expenses outside of the criteria are frequently retrospectively authorised by the court. These can often be based on the normal commercial amounts paid in international surrogacy arrangements”.
So much for only altruistic surrogacy being allowed under UK law!
Multiple surrogacy pregnancies
The Law Commission’s proposals include no limits on the number of times a woman can be a surrogate mother, despite the well-documented risks that accompany high parity (giving birth more than five times), especially when the births are close together.
In the UK we have seen some serial surrogate mothers who do this many times. Published cases include those of Carole Horlock who had 13 surrogate babies, in addition to her own two children, and Jill Hawkins who had ten surrogate babies, including twins born when she was 48, after a serious haemorrhage at 35 weeks gestation. She has a long history of depression including a previous suicide attempt and other health problems.
Seven surrogate babies… and counting
In January 2021, The Times newspaper carried a story of a woman having her seventh surrogate baby. She also had two children of her own, making this her ninth birth in total. She stated that she would be paid £15,000 in “expenses”. Despite “nearly dying” during her fifth surrogate birth, when she needed intensive care and a transfusion of four litres of blood, she carried on. This seventh pregnancy was embarked on just six months after the sixth surrogate baby was delivered in December 2019.
The World Health Organisation recommends a gap of two years between babies and yet this woman has had seven surrogate babies in eight years.
I contacted the Human Fertilisation and Embryology Authority (HFEA) about this case and asked them to investigate as I feel she has been recklessly exposed to risk by the fertility clinics not ensuring she had a proper recovery time between babies. As a result, I was contacted by the Chief Inspector of the HFEA and had a long conversation about the issues this case raises.
The inspector explained that the HFEA can only regulate surrogacy within the confines of the law. Meanwhile the then Minister of Health, Matt Hancock, had assured me that surrogacy is regulated by the HFEA. This means that unless limits on the number of surrogacies a woman can undertake are enshrined in law, there will be no such protections for women undertaking surrogacy.
Compensation for a hysterectomy… or death
Question 79 of the consultation considers the matter of compensation for excessive haemorrhage and/or hysterectomy:
“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.
UK law protects dogs… Will it protect women?
The UK is a country of dog lovers. It is notable that dogs have more protection in law than the Law Commission proposes for women engaging in surrogacy.
Licensed dog breeders are restricted in order to protect the female dog from “Pain, suffering, injury and disease”. As such they must not breed from a bitch aged less than 12 months; they must ensure she does not give birth to more than one litter of puppies in a 12-month period; they must ensure no dog has more than six litters of puppies in total; and she must not be used if she has had two litters delivered by Caesarean section.
Demands for “fertility equality” and for the NHS to foot the bill
There are increasingly strident demands for surrogacy to be considered just another form of “fertility treatment” and that this is a matter of “fertility equality”. But this ignores both that there is no human right to a child and the exploitation that ensues when third parties utilise women’s reproductive capacities to provide them with babies.
Surrogacy UK, a not-for-profit pro-surrogacy organisation, recommended in their 2018 report that:
“Public funding should be made available for surrogacy-related fertility treatment in the UK and to pay UK surrogate expenses”.
This appears to mean that they believe the NHS should pay all of the costs related to surrogacy, including paying a woman to put her own health and wellbeing at risk in order to gestate a baby for commissioning parents.
In fact, this is already happening in Scotland. In 2020 the first gay male couple to get access to surrogacy on the Scottish NHS spoke of their joy, saying, “The NHS has done everything from start to finish pretty much.”
Meanwhile, for those who can afford to pay, there are no limits. In 2016 it was reported that a gay couple paid three surrogate mothers they met on the internet more than £40,000 to give birth to three babies in less than six months. Despite many concerns and criticisms from the judge, who said the couple were “dishonest” and “reprehensible”, and condemnation for trying to conceal how much they paid the surrogate mothers, they were awarded parental responsibility for the three children.
Surrogacy is sold as the ultimate gift of love, “one of the most emotionally fulfilling experiences you will ever have” and yet the reward for this love is to be treated as one of a herd of cattle.
What next?
The Law Commission plans to present a draft bill to parliament in the autumn of this year (2022). We wait with interest to see if they have taken on board any of the robust criticisms of their proposals that they received in the response to their consultation.
Meanwhile Stop Surrogacy Now UK and Nordic Model Now! are trying to raise public awareness of the proposals, contacting members of Parliament and preparing to campaign against the bill. We do this for the protection of the dignity, health and rights of women and the human rights of babies not to be treated as commodities to be purchased to order.
Thank you so much for your time.