Women as vessels. Babies as commodities.

This article is based on Anna Fisher’s talk to a women’s group in Tottenham, North London, on 18 March 2024.

I’m going to very briefly run through the current law around surrogacy in England and Wales. I’ll then explain the key features of the Law Commission’s recommendations for change – and throughout, I’ll be covering some key feminist arguments against surrogacy.

The current law on surrogacy in England and Wales

Summary:

Total ban on advertising.
Theoretically only ‘altruistic’ surrogacy is allowed.
The birth mother is the legal mother.
The commissioning parents then apply for a parental order.
A judge rules in the ‘best interests’ of the child.

Under the current law there’s a total ban on surrogacy agencies advertising their services. Theoretically only ‘altruistic’ surrogacy is allowed, but in practice significant payments are often made to both birth mothers and agencies.

When the child is born, the birth mother is the legal mother. So, although generally the commissioning parents look after the child, the birth mother has some oversight in the first weeks and months, until the commissioning parents apply for a ‘parental order’ from the courts. This requires CAFCASS (Children and Family Court Advisory and Support Service) to undertake an assessment of their suitability and a judge to rule in what they see as the child’s best interests.

But even when surrogacy is truly altruistic – there’s no guarantee it will go well.

A woman, who I’ll call Mrs A, got in touch to tell us how she became a ‘surrogate’ mother for some old family friends after her own two pregnancies had gone well, and it all went terribly wrong. She thought she was well-informed but in fact had no idea what she was really letting herself in for – aggressive hormone therapy prior to the embryos being implanted, emotional pressure to accept two embryos rather than one, and the very heavy toll of carrying twins from a different woman’s eggs.

She said the commissioning parents felt the unborn babies were ‘theirs’ and were therefore entitled to make medical decisions for her during the pregnancy and there were disagreements about how and where she should give birth and this developed into quite an unpleasant battle. The long and the short of it was, she was left with life-long injuries from the birth and severe PTSD – and the relationship with the commissioning parents – who had previously been close friends – completely broke down.

She now doesn’t believe any woman should ever be put in the position of being a ‘surrogate’ mother. You can find her account of what happened on our website.

We know of other women who’ve had similar experiences – for example a young woman who was pressured by her family into being a ‘surrogate’ mother for her infertile older sister. That also went pear shaped and she’s now estranged from the rest of her family. And we have accounts of other women’s unhappy experiences on our website.

These stories illustrate two major problems with the reality of surrogacy – (a) how easily women are coerced into doing it, and (b) that it generates a profound conflict of interests between the birth mother and the commissioning parents, who invariably have a sense of entitlement and ownership over the foetus before it is born. These problems are common – even when the surrogacy is ostensibly altruistic.

However, it becomes even more complicated as soon as money changes hands, and brokers are involved.

Under the current law in the UK, women can be paid what are called ‘reasonable expenses.’ These currently average between £12,000 and £20,000 – but can be considerably more when the child is born to UK parents under a commercial arrangement in, for example, California.

The payments must be approved by the judge who deals with the parental order. But in practice receipts are not required and to our knowledge, judges have never refused a parental order on the basis of excessive payments.

To put these payments in perspective, they are more than a lot of retail workers and cleaners earn in a year. Paying women who are struggling in poverty significantly more than they can earn in a year is a powerful financial incentive. And don’t tell me that it won’t make people want to pimp out their partners or the younger women in their family for exploitation in the surrogacy industry.

So, in reality it’s not true that only ‘altruistic’ surrogacy is allowed in the UK. Women are already being paid to be ‘surrogate’ mothers – and in many cases, agencies are making a handsome income.

The Law Commission’s recommendation

Background

The Law Commission undertook a major project on surrogacy over several years. The project fell into the “Property, family and trust law” section and the commissioner in charge was Professor Nicholas Hopkins, whose chief area of interest and expertise is “law as it applies to land.”

The terrible irony was not lost on us that the project that aimed to make it easier for men in particular to gain access to children (as if they are private property) by instrumentalising women as wombs (as if they are public property), was run by a man who has no known expertise in children’s welfare or women’s rights but who was instead an expert in the law of property.

They ran a consultation in 2019 – and to say it was biased would be an understatement. It had 118 questions, many of which had multiple parts and most of which required you to formulate detailed essay-type answers. To understand the questions, you needed to read the consultation paper which ran to 502 dense and technical pages.

We quickly realised that it was almost impossible for a busy ordinary person to respond to the consultation if they disagreed with its proposals. We therefore created a template that people could use. I am really proud to say that the Law Commission have admitted that the majority of the responses to the consultation disagreed with the proposals and called for an outright ban and most of these used our template. However, that didn’t cause the Law Commission to reconsider their proposals. They said a ban was outside the project’s remit and it appears that in practice they pretty much ignored the responses that didn’t agree with their proposals.

Their final recommendations were not much different to the proposals put forward in the consultation and were published in March last year, along with a draft bill.

The current government has said it will not take the recommendations forward in this parliament. But the issue is likely to rear its head after the general election. We believe that Labour is more gung ho on this issue than the Conservatives.

The key recommendations

So, onto the recommendations. These are extensive and I’m not going to go through everything. But the ones that we believe are key are:

A ‘New Pathway’ to parenthood.
Tighter restrictions on what can be paid to birth mothers.
No restrictions on advertising.
Regulated ‘not for profit’ agencies.
A national register of surrogacy arrangements.

I’ll go through each of these separately.

The ‘New Pathway’

There will be some restrictions on who can qualify for this, but those who don’t will be able to use something akin to the old system.

The ‘New Pathway’ is broken into three phases: pre-conception; conception, pregnancy and birth; and post-birth.

The ‘New Pathway’: Pre-conception

The pre-conception stage of the New Pathway has a number of steps.

First the commissioning parents and the birth mother need to find each other – And usually an agency will facilitate this.

Then all the parties have to undergo basic health and criminal record checks and have independent legal advice and what the Law Commission calls ‘implications counselling.’ This won’t be therapeutic counselling looking at why the woman wants to undergo such a dangerous procedure for someone else’s benefit but will inevitably be more a rubber-stamping exercise.

There will also 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.

Once all of these things have been successfully negotiated, lawyers will draw up a written agreement for the parties to sign. This will specify what the birth mother will be paid – and this will be the only legally binding part of the agreement – theoretically at least.

The ‘New Pathway’: Conception, pregnancy and birth

So, onto the conception, pregnancy and birth stage of the ‘New Pathway’.

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. When people are looking for an egg donor, they’re presented with a catalogue, listing women with their features, skin, hair and eye colour, height, weight, sporting and academic achievements, etc.

This is eugenics – the selective breeding of human beings. This was popular in Nazi Germany, but after the Second World War it was rejected as abhorrent. And yet, here it is again. And the Law Commission didn’t mention it or make any recommendations for addressing it.

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 made no recommendations for measures to reduce the risks for the women concerned.

As I’ve already mentioned, surrogacy inevitably involves fundamental conflicts of interests between the commissioning parents who consider the foetus to be theirs and the birth mother. It would appear that the Law Commissioners didn’t consider how to minimise these conflicts of interests and their proposals are likely to make them worse. For example, the agreement is likely to say that the commissioning parents can attend the antenatal scans and be present at the birth.

But it is the birth mother’s body and under international law she has an absolute right to make decisions about her body and the foetus she is carrying without interference. The proposals are likely to weaken her position and leave the health service dealing with the predictable problems. And because the commissioning parents are likely to be richer and more confident and have a strong sense of entitlement, they’re likely to get their own way.

Donor egg pregnancies are at significantly greater risk of obstetric complications, such as pregnancy-induced hypertension, small birthweight, gestational diabetes, intrauterine death, pre-term delivery, and Caesarean section. These additional risks are thought to be due to the mother’s immune response to the foetus because it doesn’t share her DNA.

Another risk factor is multiple births. Implanting multiple embryos is well recognised to put the birth mother at higher risk and is discouraged by the Human Fertilisation and Embryology Authority. But in surrogacy there is greater incentive for ignoring these risks and going for “two for the price of one”.

The medical costs alone of managing such high-risk cases was quantified in a Californian study. It found the costs of donor egg pregnancies were several times higher in all cases, but 26 times higher for twins and 173 times higher for triplets.

Any significant increase in surrogacy in the UK, as will inevitably follow should the recommendations become law, will therefore lead to considerable additional pressure and financial burden on the NHS.

And because of this and the increased incidence of major complications, already overstretched resources will be diverted away from other labouring women, and even general surgical patients.

It is alarming that the Law Commission didn’t appear to understand the very real risks to women’s health that surrogacy poses and that they didn’t propose measures that would reduce these risks – such as allowing only one embryo to be transferred, introducing an upper age limit for surrogate mothers, and limiting the number of surrogate pregnancies that are allowed. Their only concession was a lower age limit for surrogate mothers of 21.

The Animal Welfare Act 2018 restricts the ability of commercial dog breeders to exploit female dogs by strict age limits and allowing no more than six pregnancies, and the Kennel Club’s regulations are even stricter. How shocking is that? More protections for female dogs under UK law than the Law Commissioners recommend for women. More protections for puppy farming than for human baby farming.

The ‘New Pathway’: Post birth

Under the ‘New Pathway’ the commissioning parents automatically become the legal parents of the child at the moment of birth.

This is what all the vested interests want – certainty that the commissioning parents will get to legally own the baby that for all intents and purposes they have bought, and the brokers and lawyers will be assured of their fee.

If the birth mother has second thoughts, her only recourse will be to voice her objection within six 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 have custody. And they will invariably have more money and power, along with support of the brokers and lawyers, than she does. So she is unlikely to be granted a parental order even if she has the wherewithal to pursue one.

Much of this is justified by the claim that one or both of the commissioning parents are the biological parent of the child because they supplied the sperm or egg.

But this notion that the egg and sperm donors are the biological parents is problematic – because it disappears the role and the relationship of the birth mother. Without her, eggs and sperm are waste products. Most end up in the loo or wrapped in a tissue in the bin.

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 essentially reduces the enormous biological and psychological investment of pregnancy, childbirth, and the postpartum period to the equivalence of a man’s momentary ejaculation or a wad of cash.

Payments

The Law Commission 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.

If the Law Commission’s 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, are likely to be even weaker.

Within days of the Law Commission publishing their final recommendations, social media was alight with UK surrogacy organisations and lawyers saying that the recommendations don’t go far enough.

Advertising free-for-all

The Law Commissioners have proposed ending the current ban on advertising.

This will lead to more people wanting to take advantage of surrogacy – and even thinking they have a right to it.

Women who have real choices for decently paid meaningful work do not as a rule put themselves forward to rent out their wombs.

So, the rent-a-womb industry will need significant numbers of healthy young women to put themselves forward.

Young women are already bombarded by online adverts like these from fertility clinics seeking to harvest their eggs. Typically, the ads present a rosy picture and don’t mention the grave risks – and they play on women’s socialisation to put everyone else’s needs before their own.

Take a minute to really look at these adverts. Notice it says “Be amazing. You can help another woman fulfil her dreams.” This is the most obscene emotional manipulation.

It also exposes the hypocrisy of the big fertility industry – the egg donor is considered the mother when it suits them but not when it doesn’t. It all depends on who is paying for what. If the egg donor is a commissioning parent, she’s considered the biological mother and the woman who carries and births the child is dismissed as an irrelevance. But if the egg is implanted into a woman who will keep the child, that woman is considered the biological mother and the egg donor is dismissed as an irrelevance.

This is a US surrogacy advert. If all restrictions on advertising are removed, Facebook, Instagram, Google, and other social media companies will push adverts like this onto the feeds of young women – and no doubt likewise there’ll be no mention of the risks.

This will send out the message to young women that it is a reasonable thing to do. For women in financial difficulties, even the prospect of modest expenses might seem like a godsend. We’re currently facing an unprecedented economic downturn that is hitting women and children hardest. Do we really want renting your womb to be one of the few options left for poor women to make the money needed for survival?

Do we really care so little in this country for our young women that we will put them through that? That we will suggest that it is a reasonable, safe thing to do?

But they’ll also push adverts for surrogacy services onto the feeds of gay men, single men, and infertile and high-flying women. This will increase demand for surrogacy and the sense that it is a “right”.

We don’t allow advertising for things like smoking that carry health risks. How on earth can it be justified for surrogacy which carries so many risks, including premature death?

‘Not for profit’ agencies

Another recommendation is ‘not for profit’ agencies, regulated by the Human Fertilisation and Embryology Authority (HFEA), to provide ‘matching and facilitation’ services.

On the surface, this may sound reasonable. But in practice even if they are technically ‘not for profit’, they will need to cover their costs, which no doubt will include swanky offices and hefty salaries for executives.

This will mean that 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 their wombs. This will inevitably lead to a rapid expansion in the number of surrogacy arrangements.

To hint at the reality, this slide shows two screenshots from the Brilliant Beginnings website. Brilliant Beginnings claims to be a not-for-profit agency but it was founded by Helen Prosser and Natalie Gamble from NGA Law which describes itself as “the UK’s leading fertility law firm” and which has publicly stated that they don’t think the Law Commission’s recommendations go far enough.

No doubt Brilliant Beginnings stay within the letter of the UK law on non-profits, but it is hard to believe that they don’t introduce clients who need legal services to NGA Law and I can’t help wondering how many surrogacy arrangements they need to facilitate to pay for their central London office and staff?

National Surrogacy Register

Children have a right to know their origins. Although we would prefer there to be no surrogacy in the UK, while even one child is born this way, there clearly needs to be a mechanism for them to find out where they came from. We therefore tentatively support the proposals for a national surrogacy register, with children having access to it from the age of 16 or 18.

Commercial surrogacy in all but name

The Law Commission claims they are recommending a purely altruistic system, 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. This really does expose the claim that the arrangement is entirely altruistic as a sham.

Although the Law Commissioners recommend strict controls on what the birth mother can be paid, there will be a whole feeding chain of NGOs, consultants, lawyers, counsellors, fertility clinics and health professionals who will be able to profit from her surrogacy.

And opening up advertising, will normalise surrogacy, increase the demand for it and the sense that it is a “right”. Young women will be bombarded with adverts on their social media feeds, enticing them to become surrogate mothers, offering them the opportunity to give the “gift of life” and to “make another woman’s dreams come true” and so on – while not mentioning the very real dangers she would be opening herself up to.

None of these things are compatible with purely altruistic surrogacy. Rather they are clear signs of a commercial style system.

The commodification of babies

Buying and selling babies is absolutely forbidden under binding international law. If the commissioning parents pay a woman to undergo a pregnancy and childbirth and are automatically granted legal parenthood at the moment that child is born, how is that not buying the baby? What are they paying her for otherwise? The argument that they’re paying her for a service doesn’t really wash. Because the pregnancy is of no intrinsic interest to the couple – as is evidenced by the birthing mother sometimes being called a carrier – as if she’s a plastic bag. They are only interested in the pregnancy insofar as it produces a live and healthy baby at the end of it.

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 a 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.

Commodification of women’s reproductive capacities

Similarly, commodifying women’s reproductive capacities reduces women to second class status – to instruments for the use of other people. Just like with prostitution. And it dilutes the understanding of motherhood which would affect all mothers now and in the future.

Opening up surrogacy to the full fury of the capitalist markets would be a seismic catastrophe for women. For children. For humanity. We must resist it at all costs.

Women didn’t fight for centuries for control over our 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.

Write to your MP

So what happens next? The government has stated that it won’t be taking this forward before the general election. What happens after that is anyone’s guess. There seems to be considerable support for the Law Commission’s recommendations among Labour MPs and peers. A Labour MP, Liz Kendall, recently – at the age of 50 – acquired a baby through surrogacy.

We are encouraging people to write to their MPs to ask them not to back the Law Commission’s recommendations and bill should it come to parliament. We have a 2-minute tool you can use to send a template letter, and we have more detailed tips and suggestions on our website if you want to craft your own letter. I have some flyers with the details.