The Law Commission has published recommendations for changing surrogacy law in the UK to a commercial-style model, which would expose women to unjustifiable risks and involve the buying and selling of babies in all but name.
The current Conservative government has announced that it will not be taking the proposals forward, due to lack of parliamentary time. However, we are concerned that the next government will proceed with the proposals. It is therefore important to let your MP know that you are opposed to the proposals.
Therefore, please write to your MP to ask them to support women and children’s rights and to reject the Law Commission’s recommendations and draft bill.
In collaboration with Stop Surrogacy Now UK, we have developed a 2-minute tool that you can use to quickly send a template letter to your MP. If you would prefer to write your own personalised letter, we’ve set out some tips to help you below.
Do please let us know if your MP replies and what they say.
Writing your own personalised letter
It is always preferable to write your own personalised letter and we set out some tips if you want to do this. However, it’s better to send the template letter than nothing at all. This is definitely a numbers game – the more letters objecting to the recommendations MPs receive, the more weight they are likely to put on your views.
How to send your personalised email or letter
There are several ways you can send your email or letter:
- Using the Write To Them online portal.
- Using your normal email programme or by post. You can get your MP’s contact details at https://members.parliament.uk/members/commons.
Remember to include your full name and postal address including postcode in the letter. MPs can reject letters and emails that do not include this information.
Tips for what to say
Be brief and to the point. We recommend no more than one and a half sides of A4.
Start the letter with: I am writing to you as a constituent….
Introduce yourself and ask them to reject the Law Commission’s recommendations and to vote NO to their draft bill or any similar bill. Explain what concerns you about surrogacy. You may wish to add some personal details – for example, a personal experience you have had or ways in which surrogacy has affected you or someone you know.
You are welcome to copy and paste all or parts of our template letter, which is available for download as a PDF and is reproduced in full below. This covers many of the key issues.
You may want to end the letter by asking your MP to pass on your concerns to the government and the ministers responsible.
Other key points
Legal parenthood: Removing the birth mother’s automatic right to be named as the legal mother of the child would not only remove an important safeguard to the child’s welfare but would also set a precedent that will inevitably impact all women down the line – because it reduces 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. We do not believe that the law commissioners have fully considered all of these implications and we do not believe that this huge and fundamental change should be pushed through without a proper debate.
Egg harvesting: Most surrogacy pregnancies are now based on ‘donor’ eggs. This is preferred by the surrogacy industry because it ensures there is no genetic link between the birth mother and the child she carries, and therefore it weakens any claim she may subsequently make to the child. This means that commercial surrogacy is predicated on harvesting eggs from healthy young women. Egg harvesting is risky and can lead to serious health complications, including premature menopause, increased risk of cancer, ovarian hyperstimulation syndrome and even death. The law commissioners make no recommendations for measures to reduce the risks for the women concerned.
Health risks: Surrogacy pregnancies pose many serious health risks to both women and babies and yet the law commissioners have not included any measures to mitigate these risks – for example, placing an upper age limit on potential surrogate mothers, not allowing more than one embryo to be transferred or more than one (or at most two) surrogate pregnancies. Our research has revealed that the HFEA can only regulate on the basis of the law and the NHS do not police the regulations – only the HFEA can do that. This means that unless some restrictions are enshrined in the law, there will be no restrictions in practice. This is why the law needs to be explicit on these restrictions.
Age limits: There are also good arguments for restricting not only the age of surrogate mothers but also of commissioning parents.
Rise in numbers: If the Law Commission’s recommendations are implemented in full, there will inevitably be a rise the number of surrogacy arrangements that take place in the UK. We do not believe that the law commissioners have fully considered the implications of this and the inevitable additional load that would be placed on the NHS and social services. For more on this, see our previous template letter to MPs.
Welfare assessments: Under the Law Commission’s recommendations for a ‘New Pathway’, there will be a very shallow assessment of the welfare of any child born of the arrangement, but this won’t be comparable with pre-adoption assessments. For example, there’ll be no home visit. Furthermore, the checks will take place before the baby is conceived, which may be a year or more before the child is born. Much can change in the course of a year – for example, marriages and partnerships can break down and employment prospects can change.
The law commissioners justify this on the basis that there are no such checks when babies are born through the age-old natural process. However, this is not comparing like with like. Pregnancy, birth and the post-partum changes are intense physical and existential experiences that are lifechanging and prime the woman to love and be sensitive to the new-born child and rise to the challenge of the enormous task of raising him or her to adulthood. Commissioning parents do not have any of these advantages. We therefore believe that they should be subject to a rigorous assessment process, equivalent to that used for adoptive parents.
Ongoing contact: Many experts recommend that there should be ongoing contact between the child and the egg donor and birth mother post birth and that this should be the norm. You may therefore want to suggest that this is written into any future legislation.
Comparisons with kidney donation: It is almost universally recognised that paying someone to “donate” a kidney is unethical. As a society, we recognise that poverty and desperation act as coercive forces when money is involved and that by placing a monetary value on human organs, we devalue human life itself. Live kidney donation is therefore very strictly regulated. Surrogacy has many parallels with live kidney “donation” but takes a whole year of your life and arguably comes with even greater risks to health and wellbeing. But the Law Commission has recommended a much laxer regulation than for live kidney donation – allowing mass advertising and for many people to be able to profit from a woman’s surrogacy. How is this justifiable and what does it say about the status of women in the UK, given that only women can become surrogate mothers?
More protection for dogs: The Animal Welfare Act 2018 restricts the ability of dog breeders to exploit female dogs by a strict age limit and allowing no more than six pregnancies in total, and the Kennel Club’s regulations are even tighter. The LC has included no equivalent protections for women and children – meaning that dogs would have more protection from reproductive exploitation in the UK than women.
Autonomy is a weak argument: The law commissioners justified many of their decisions by claiming they must not interfere with people’s “autonomy”. For example, they suggest 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 or for society as a whole. For example, it is well established that many behaviours are restricted or banned altogether for the protection of others, including dealing in illegal drugs and driving fast in a built-up area.
Conduct of the project and consultation: We believe that there were fatal flaws in the way the Law Commission went about developing their recommendations and consulting on them, that they were unduly influenced by people with vested interests, and they failed to centre women and children’s human rights and to pay proper attention to the advice of experts in these fields.
A total ban: You may want to call for a total ban on all surrogacy arrangements in the UK.
The template letter
This is the template letter used in our 2-minute tool. You may adapt this or copy and paste from it if you wish.
Subject: Please say NO to the Law Commission’s surrogacy recommendations
Dear [MP’s name]
I am writing to you as a constituent because I have grave concerns about the Law Commission’s (LC’s) recommendations and draft bill for changing surrogacy legislation in the UK. I am particularly concerned that the recommendations will normalise surrogacy and institutionalise the view that obtaining a baby is a “right” and that women are the means for other people to realise that “right”.
Although the current Conservative government has announced that it will not be taking the proposals forward in this parliament, due to lack of parliamentary time, I am concerned that the next government will proceed with the proposals.
Most of the respondents to the consultation disagreed with the proposals and wanted a total ban on surrogacy in the UK[1] in line with many of our close European neighbours, including France, Germany, Spain, and Italy. And yet the LC effectively dismissed these responses on the basis that they were outside the remit of the consultation. Instead, they listened to the minority of respondents who were in favour of normalising surrogacy, even though many, if not most, of these had vested interests in the success of the surrogacy industry.
It is troubling that the LC appears not to have recognised that pregnancy and childbirth are unique human experiences that carry major risks and are life changing for women. For example, they claim that the kind of welfare checks that are mandatory on the transfer of a child in any other circumstances are not necessary because such checks are not required when a child is conceived in the age-old natural fashion.
But this does not recognise that for almost a year of her life, the mother is in an active symbiotic relationship with the developing foetus and this takes place on the emotional and psychological level as much as on the physical level. This means that her commitment to the baby’s well-being is already well developed when he or she is born. The historical and traditional presumption that the birth mother is the legal parent is therefore reasonable and just.
The LC recommends that, provided the commissioning parents pass a number of basic checks prior to conception and everything proceeds according to plan, they will automatically become the legal parents at the moment of birth. If the birth mother has second thoughts and finds that she cannot after all hand over this baby to people who are complete strangers to it, her only recourse is to voice her objection and 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.
The LC claims that this arrangement will be purely altruistic, but that is smoke and mirrors. If it were purely altruistic, there is absolutely no reason why the current system can’t be maintained where the birth mother automatically has legal parenthood and if, of her own volition, she decides to hand the baby over, she can do that after the birth and the commissioning parents can then apply for a parental order.
The reason for this proposed change is that the commissioning parents and the whole feeding chain of lawyers, consultants and advisors want certainty. They want the baby to be transferred no matter what and they want their fees. They are terrified that she will change her mind – even though research has shown that it is much more likely that the commissioning parents will do so.[2] This really does expose the claim that the arrangement is entirely altruistic as a sham.
The LC recommends introducing regulated surrogacy organisations (RSOs), overseen by the Human Fertilisation and Embryology Authority (HFEA). These would need to be “not for profit”, which the LC seems to think will ensure that they won’t be driven by commercial concerns. But they will need to cover their costs, which no doubt will include attractive offices and hefty salaries for executives, so in practice commercial objectives will drive them and they will need to continuously seek new business and new women who can be convinced or coerced to rent out their wombs.
Another worrying aspect is that the LC recommends the ending of the current ban on advertising surrogacy services. There will still be some restrictions but RSOs, and lawyers, counsellors and health professionals will be able to advertise. This will inevitably increase the demand for surrogacy – and increase the view that it is a “right”.
This will have an enormous impact on young women, as the tech giants will push adverts onto 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.[3] These ads will inevitably encourage marginalised young women into surrogacy arrangements that are likely to cause them untold damage and ruin their life chances.[4]
The LC recommends strictly limiting what surrogate mothers can be paid to the actual cost of the pregnancy and surrogacy process and “modest” gifts – along with a mechanism for enforcing this. Their aim is that she should be no better or worse off financially because of the surrogacy arrangement than if she hadn’t undertaken it.
This purports to ensure that she is not enticed into it for financial gain and to reduce the risk that women will be exploited. This would be admirable of course, if they weren’t sanctioning an entire feeding chain of NGOs, lawyers, counsellors, fertility clinics, and health professionals who will financially benefit from the arrangement – in other words a commercial system for everyone apart from the one person without whom it could not exist. As such it can only be seen as exploitative of women’s generosity and socialisation to put everyone’s needs before their own.
This reveals the contradictions in the idea that altruistic surrogacy is possible at mass scale. It simply is not.
I am concerned that if the bill were to go before parliament, the powerful and well-funded surrogacy industry will lobby for it to become better suited to their aims – for example, that fees to surrogate mothers can be higher to attract more women into their net, and the protections proposed, such as they are, would be even weaker. Social media is already alight with UK surrogacy organisations and lawyers saying that the recommendations don’t go far enough.
I have many other serious concerns about the recommendations, including that they fail to include appropriate measures to address the fact that surrogacy pregnancy and childbirth carry significantly more medical, psychological and emotional risks than natural ones.[5] For example, they have not placed an upper age limit on surrogate mothers nor introduced a limit on the number of embryos that can be transferred. Nor did they consider the pressures these additional risks will place on the NHS and social services.[6]
The surrogacy industry is predicated on the commodification of babies and women’s reproductive powers and this is the premise on which the LC’s recommendations are based.
When we legitimise the commodification of babies, it 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 is not only abhorrent, but it 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.
Similarly, commodifying women’s reproductive capacities reduces women to second class status. Women didn’t fight for centuries for control over their own bodies – only for a world that is so unequal that one of the few options many women have is to rent out their wombs.
We should be aiming at discouraging surrogacy, not increasing demand for it by making it easier and strengthening the legal rights of commissioning parents.
I urge you to reject the Law Commission’s recommendations and say NO to their draft bill (or any similar bill) and I request that you pass on my concerns to the government and ministers responsible.
Yours sincerely
[Name and address]
[1] See page 12 of the full report: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/03/2.-Surrogacy-full-report.pdf
[3] https://nordicmodelnow.org/2021/02/21/egg-donation-empowering-really/
[5] https://nordicmodelnow.org/2020/09/07/medical-risks-of-surrogacy-and-egg-harvesting/
[6] For example, see the section on the NHS in the Impact Assessment: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/03/IA-Surrogacy.pdf
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