Today the Law Commission published the results of their 2019 consultation on proposals for surrogacy law reform in the UK, their final recommendations for changing the law on surrogacy, and a draft bill setting out their recommended legislation.
Most people who responded opposed their proposals but they are steaming ahead with (most of) them anyway
According to their report, there were 681 responses to their consultation, the majority of which “opposed most or all of our provisional proposals for reform, and advocated instead for surrogacy to be prohibited”. They say that most of these responses were based to some extent on the template response that we prepared and that the objections were mainly based on concerns about the exploitation and commodification of women, the fragmentation of motherhood, and the commodification of children.
They went on to say:
“The preponderance of consultation responses we received based on the Nordic Model Now! template mean that numerically most of our provisional proposals for reforms were opposed by a majority of consultees.”
They then explain that their recommendations are never based simply on a numerical count of the responses given but that they consider all the responses given. And:
“We also take into account that some responses, for example those received from representative bodies, represent the views of the members of that organisation, who may be numerous, and who have relied on their organisation’s response to convey their views, rather than sending in individual responses. Accordingly, responses from representative organisations represent more than just a single consultee. To fail to take this into account would, therefore, provide an unreliable measure of the number of individuals who engaged with, and are affected by, our project, and who hold particular views and opinions.”
Some of the representative organisations that submitted responses were vehemently opposed to the proposals. For example, End Violence Against Women (EVAW), which represents more than 80 women’s organisations sent in a response opposing the proposals, as did several other women’s organisations – even though the law commissioners did not promote the consultation widely to mainstream women and women’s organisation.
Freedom of information requests revealed that the main thrust of their strategy for promotion of the consultation was with those that already had a vested interest in successful surrogacy and gay men. That the law commissioners did not consider “ordinary” women to be stakeholders is evidenced by the fact that they did not promote the consultation widely in the women’s media.
But in spite of this, the majority of respondents to the consultation said they wanted a complete ban on surrogacy.
The consultation was daunting and difficult
That so many respondents made use of our template response suggests that, as we quickly realised, the consultation was very difficult to respond to effectively if you disagreed with the premise that surrogacy is ethically neutral and that any problems with it are down to out of date legislation.
The consultation paper ran to 502 dense and technical pages and had 118 questions, most requiring open-ended answers about detailed technicalities, and many with multiple parts.
There were no simple and straightforward questions about the broad issues – such as whether you think paid surrogacy can ever be ethical, particularly while women’s poverty and inequality between the sexes are hurtling backwards.
Realising that even with our template responses, many women felt unequal to the task of responding to the consultation, in the last week of the consultation period, we organised an open letter to the law commissioners setting out the many issues we had with the consultation and calling for a complete ban on surrogacy in the UK. In the three and a half days that this was open for signatures and with no advertising budget, the letter was signed by 27 UK organisations, 24 international organisations, and 794 individuals. We sent the letter to the law commissioners on the last day of the consultation and asked for it to be considered a formal response.
Banning surrogacy is “outside the terms of reference”
In the Equality Impact Assessment, the law commissioners again refer to the fact that about half of the consultation responses were based on our template response and went on to say:
“Essentially, their response, and their template response, sought something outside the terms of reference of the project: the absolute prohibition of surrogacy.”
So it would seem that by restricting the remit to what they wanted, the law commissioners appear to dismiss the majority of respondents who have such grave concerns about surrogacy that they want it banned!
Many of the justifications for their decisions are based on not interfering with people’s “autonomy”. For example, the report suggests that introducing a maximum number of surrogate pregnancies that a woman is allowed to undergo, would “be an unacceptable interference with her autonomy”.
But a functioning society does not make an individual’s “autonomy” the overarching imperative when an activity has implications for others. For example, it is well established that there are speed limits in a variety of situations (near schools, on roads of various types, in built-up areas, etc.) for the protection of all.
Those who want surrogacy banned understand that it has a wide social impact and this justifies restricting people’s “autonomy” to engage in it – just as restricting people’s freedom to drive fast is justified by the harms that driving fast causes to others.
By not including any questions about the ethics of surrogacy in their consultation and by apparently dismissing the majority of responses because the people making them are concerned about the ethics of surrogacy and its wider social impacts, the law commissioners have undermined their own conclusions.
Commercial surrogacy in all but name
The Law Commission claims that their recommendations and draft bill do not amount to commercial surrogacy – but we disagree. Key features that mean that it amounts to a commercial-style system are:
1. A ‘New Pathway’ under which, provided they pass a number of basic checks prior to conception and everything goes according to plan, the commissioning parents will automatically become the legal parents at the moment of birth. If the birth mother has second thoughts, her only recourse is to voice her objection within 6 weeks of the birth and then apply to the courts for a parental order. Even if the child was conceived from her own genetic material, the commissioning parents – as the legal parents – will take custody of it. This means she is unlikely to be granted a parental order even if she has the wherewithal to pursue one.
2. Although they recommend strict controls on what the birth mother can be paid so that she is no better or worse off financially than if she hadn’t entered the arrangement, a whole feeding chain of NGOs, consultants, lawyers, counsellors, fertility clinics and health professionals will be able to profit from her surrogacy.
3. The opening up of advertising. This will normalise surrogacy, increase the demand for it and the sense that it is a “right”. At the same time young women will be bombarded with adverts on their social media feeds, enticing them to become surrogate mothers. They already do this for egg “donation”, always playing on women’s emotional vulnerabilities, offering them the opportunity to give the “gift of life” and to “make another woman’s dreams come true” and so on. These ads will inevitably encourage marginalised young women into surrogacy arrangements that are likely to cause them untold damage and ruin their life chances.
Where do we go from here?
We have studied the Law Commission’s recommendations and have now published a template letter for UK folks to send to their MPs and tips for writing your own personalised letter. We’ve also got a 2-minute tool you can use to quickly send the template letter to your MP.