Sneaking Surrogacy into Law

by Lauren Hamstead

Self-interested businesses and charities want surrogacy made easier. But why has no one listened to women?

Note: ‘Surrogacy commissioners’ are people seeking to obtain a baby via surrogacy, not to be confused with Law Commissions ie statutory independent government-funded bodies.

OBJECT campaigns against surrogacy as one of its five key issues relating to the oppression and objectification of women. Feminist analysis of surrogacy can be found on our website, written by DrEm and my essay, which won the OBJECT essay prize 2020.

The law on surrogacy is being reviewed jointly by the Law Commission of England and Wales and the Scottish Law Commission. The Law Commissions are set up as statutory independent bodies, which undertake research to ensure that the law is fair1. A public consultation on their proposed reforms was held in 2019 and they aim to bring a draft surrogacy bill before Parliament in 2022. OBJECT believe the Law Commissions’ consultation was unjustly and unjustifiably biased in favour of surrogacy and unfit for purpose because it ignored its consequences for women and children. Any resulting legislation will therefore be unsound.

Prohibition or restriction of surrogacy was not considered by the Law Commissions. They ‘do not think that this position is tenable or achievable’2 (page 12), yet surrogacy is totally banned in many countries worldwide, including France, Germany and Spain. It isn’t explained why prohibition ‘wouldn’t work’ in the UK, but tellingly the assertion is immediately followed by ‘[restriction of surrogacy] is not what most stakeholders, or Government, have said that they would want’. Without further explanation or evidence that prohibition of surrogacy is not achievable, it appears that the Law Commissions’ role has been to ‘independently’ give the Government what it had already indicated it wanted. In this article I unpick why and how the legitimacy of surrogacy has been placed beyond question.

Step One: A lesson in policy capture 

The Department for Health and Social Care (DHSC) guidance ‘The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales’, (February 2018) produced in collaboration with three UK pro-surrogacy and surrogacy-dependent organisations (BrilliantBeginnings, COTS and Surrogacy UK) says, absurdly, ‘[t]he Government supports surrogacy as part of the range of assisted conception options’. In other words, the DHSC let surrogacy-dependent organisations dictate policy right from the start without any publicity or wider consultation. Surrogacy had not been mentioned in the 2017 Conservative manifesto and did not feature significantly in public debate at the time. The government did not and does not have a mandate to take such a biased stance on surrogacy. 

Around the same time as the DHSC were being lobbied to support surrogacy, the Surrogacy Working Group on Legal Reform (formed by Surrogacy UK) set up the All Party Parliamentary Group on Surrogacy3. The APPG first met in December 2017 and aims ‘[t]o fully review our surrogacy laws, encourage and promote debate on the issues, facilitate further research into how surrogacy is conducted, bring the law into line with modern social realities, and encourage domestic surrogacy in the first instance’4. Surrogacy UK, who campaign for law reform to facilitate so-called ‘altruistic’ surrogacy in the UK, also provides the secretariat for the APPG. When OBJECT requested APPG minutes and reports, none were available. Social media updates from APPG chair Andrew Percy MP show an unquestioning pro-surrogacy stance. He has even used the phrase ‘we in the surrogacy community’5. Encouraging debate indeed!

In 2016 Surrogacy UK ran a letter writing campaign to advocate for liberalisation of surrogacy law6. The Law Commission in England and Wales consult the public when looking for areas of law that need reform. When they did this in 2016, they received 343 submissions on surrogacy – making it the most popular proposal7. The Government supported the surrogacy reform project, which began in May 2018. Its terms of reference were set to include a broad review of relevant law but with the narrow and unjustified aim to facilitate access to surrogacy. What is the point of a review of law where the outcome has been predetermined?

Thus the pro-surrogacy stance of both the Government and the Law Commission was created by effective lobbying by a tiny group with a strong personal interest -343 responses cannot be said to reflect the views of the wider population. The consultation paper acknowledges (page 3) a lack of research on public attitudes to surrogacy, then claims that the DHSC’s guidance reflects changing attitudes – which it has just admitted it cannot possibly know. Such bias confirmation loops give well-funded groups huge influence over policy, excluding the wider public from the process of law reform. In this case the people excluded are women, whom surrogacy affects more than any other group. The result is unfair laws.

Surrogacy raises broad issues for society. How can women become equal citizens in a society that views our bodies as objects to be used or purchased for entertainment, sex or procreation? The costs involved in surrogacy mean that it is only for the affluent. If there is to be a human right to be a parent, it will be the only human right qualified by economic status. What makes someone a parent – genetics, giving birth or social relationship? How does deliberately fracturing parenthood along these lines affect the child’s well-being and sense of identity? These issues are complex and emotive but must inform policy decisions. Yet there is no sign that the DHSC considered them when writing a practical guidance booklet for surrogacy commissioners. This is why the premise of the Law Commissions’ work is fundamentally flawed: the decision to encourage domestic surrogacy was made before the project started, so the existence of surrogacy as a practice could not be questioned, nor its many harms explored.

The direction of travel pre-set, the Law Commission began designing its consultation. It met with interest groups and those knowledgeable about surrogacy practice, many of whom are acknowledged in the consultation paper (p21). Not a single women’s or children’s rights group was included. Religious groups objected on grounds of the instrumentalisation of women, but even this did not prompt the Law Commission to engage with women’s groups. The consultation paper observes ‘we also think it is important to acknowledge that the issue of surrogacy, and the specific concerns about exploitation of surrogates, directly involves women’s rights, and has been a subject of interest to feminists’. How, in that case, can the Law Commission justify its total failure to talk to women?

Step 3: Avoid the tough issues

  1. Assume you are right, avoid people who may disagree with you

When OBJECT met with the Law Commissions in August 2020, we were told that no process was followed to ensure a balanced exercise. Furthermore, because the Government had not sought an independent opinion on whether surrogacy should be supported, the starting point of the project was how this should be done, not whether it should be done. Little surprise then, that the consultation paper ignores the implications of surrogacy for women and children and the difficulties it raises, in favour of a myopic consideration of the wishes of those who seek to gain through surrogacy. 

  1. Use sophistry to ignore the difficulties – it’s all about choice

Partisan from the outset, the Law Commissions stripped away context from its supposedly root-and branch review. Did the ethics of surrogacy seem an unnecessary distraction in a project focussed on delivering technicalities? The consultation paper used a libertarian argument for reproductive freedom, but avoids the key question: Does individual procreative liberty stretch so far as to include the use of another woman’s body? Exploitation, objectification and commodification arguments against surrogacy are briefly described, then disposed of via a naive and deceptive appeal to liberal feminism – arguing that preventing women from acting as surrogates removes choice and treats them as incapable. The ethics of surrogacy are then reduced to ‘a tension between autonomy and paternalism’ (p40). This argument is flawed: it simultaneously strawmans the radical feminist position and creates a false dichotomy. To state the blindingly obvious, feminists are not concerned that women are too delicate or uninformed to make decisions. We believe that women’s social, economic and political inequality to men prevents true autonomy. Labelling all actions as a ‘choice’ is just lazy thinking.

  1. Forget the responsibilities that accompany rights

Another glaring issue, acknowledged by surrogacy organisations8,9 and the Law Commissions, is that in the UK there are more people who want a child than there are willing gestational mothers. Demand exceeds supply. The real barrier to ‘encouraging and supporting’ surrogacy in the UK is that more women must agree to become gestational mothers. This is important for two reasons. Firstly, if the law allows women to be recruited for surrogacy, then it must also protect them. Secondly, if we only consult those already involved in surrogacy, these may not be representative of new groups attracted to the practice in future, who may be very different. Yet ignoring all this, and with no thought to potential problems, the consultation proposes 4 major changes at the same time: ending the current ban on advertising for surrogacy services; letting young women and those who have not been pregnant become gestational mothers; placing no limit on the number of pregnancies or caesareans. It also seeks opinion on commercial surrogacy. All of these changes will facilitate surrogacy but simultaneously increase exploitation of women – which is ignored. This is a critical flaw. To develop appropriate and effective safeguards, the Law Commission would have had to engage with criticism of surrogacy, understand the harms, and look at how regulation might avoid them. They didn’t and they haven’t. 

  1. Ignore well-established international Conventions the UK has signed up to

The UN Convention on the Rights of the Child is clear that in decisions that affect them, the rights of the child should be paramount. There has been international interest in surrogacy, including a report by the UN Special Rapporteur on the sale and sexual exploitation of children. This says that to avoid the sale of the child, gestational mothers should have parental responsibility for the child at birth10. Yet under the ‘New Pathway’ proposed by the Law Commission, it is the surrogacy commissioners who have sole parental responsibility for the child unless the gestational mother objects within a short period of time. They falsely suggest that this proposal satisfies the UN Special Rapporteur’s recommendation. Requiring women who have recently given birth (and may be suffering health complications as a result), to formally object within a few short weeks or lose their parental responsibility is not putting women and children’s needs first. Nor does it conform to the principle that the decision to relinquish a child ‘must be a gratuitous act, based on a woman’s own post-birth intentions’. In fact, the opposite is true: this proposal facilitates the sale of children.

Payment is one of the trickiest issues in surrogacy. Recognising this, the Law Commissions did not propose either a for-profit or not-for profit model – both are discussed in the consultation paper and the consultation asked for an opinion. There is no mention of how the level of compensation might affect the risk of exploitation of women and children or whether this could be prevented. The current ‘altruistic’ system allows payment of ‘reasonable’ expenses, but these payments need not be itemised or justified; the courts invariably approve them. A typical figure would be £15,000. The Law Commissions include itemisation as an option, but are at pains to point out the administrative and cost burden this would entail. The UN Special Rapporteur specifically recommended that expense payments be ‘reasonable and itemised’ to prevent the sale of children being falsely labelled ‘altruistic’ or ‘not-for-profit’ surrogacy, yet this is ignored. This glaring omission creates a stark contrast between the consideration given to the bureaucracy and costs encountered by those seeking to procure a child and the rights of children and women not to be traded or exploited.

A compelling argument against for-profit surrogacy is that it commodifies children – surrogacy commissioners are ultimately paying for a child. The Law Commissions try to get round this by suggesting that it is their services, not the child that women are being paid for. This is smoke and mirrors. If the gestational mother decides to keep the child, surrogacy commissioners do not pay her, thank her and move on. No, they go to court to seek custody of the child. The transfer of the child is the foundation of every surrogacy agreement and to pretend otherwise is deeply dishonest. 

When arguing for reform it was highlighted that although the law only allows ‘reasonable expenses’, in practice the courts allow payments far higher. The consultation concluded that this is very hard to change. Punishing surrogacy commissioners who break the law, by criminal or financial sanction or by refusing parental responsibility, ultimately punishes the child. No-one wants this, and this is why ultimately surrogacy can never be properly regulated. The combination of wealthy surrogacy commissioners with a strong desire for children, the relative shortage of women prepared to act as gestational mothers and the child’s best interests being strongly against sanction, mean that there is no effective remedy for the high risk of exploitation. Thus, even judged on its own very limited terms, the proposed reform is unsuccessful: it has not remedied the problems with the current system.

Step 4: Prevent public debate and dissent

The public consultation was opaque and inaccessible to those who wanted to dissent on grounds of women’s and children’s rights. The flawed process of developing the consultation with surrogacy-dependent organisations was probably important here, with its focus on details and technicalities and its lack of consideration for women and children. The way in which the consultation was publicised was also biased. Having learned that same-sex male couples were a growing market for surrogacy the Law Commissions reached out to them through ‘LGBT’ media alongside mainstream coverage. At that time the UK women’s movement was growing, as new grassroots groups formed in response to women’s rights also being ignored during proposed reform of the Gender Recognition Act. It is strange that having correctly identified surrogacy as an issue important to feminists the Law Commissions failed to consult us, seemingly unaware that feminist groups were likely to oppose their proposals. 

Conclusion

The Government began the process of surrogacy reform by listening to one set of special interest groups and spectacularly jumped the gun, making a balanced project unlikely. Categorising surrogacy as just another assisted reproductive technique obfuscates the key fact that surrogacy is not a therapeutic intervention, it simply instrumentalises women’s bodies in childbearing for the benefit of others. The Law Commissions did not act objectively to properly address the lack of evidence on surrogacy outcomes, the harm done to women or the ways in which regulation is impractical. Instead of acting as an independent opinion, pointing out the flaws in the idea that surrogacy can be regulated and seeking a range of opinion, they focussed on delivering the right, pre-arranged answer the Government had indicated it wanted. The surrogacy project calls into question the Law Commission’s independence.

The draft bill on surrogacy is not expected to reach parliament until 2022, however the serious flaws in the law reform process necessitate immediate review. At the most basic level, no case for liberalising the UK’s surrogacy laws has been made. It is simply what surrogacy organisations and the Government have said they would like. The ethical issues, lack of evidence on surrogacy outcomes and incompatibility with the rights of women and children were not properly addressed in the consultation paper. Surrogacy exploits women and is often the thinly disguised sale of children. The Law Commissions’ project should stop until the harms done to women and future children have been understood and the safeguarding of vulnerable women and children becomes its primary aim. 

Ultimately, the failure to recognise women as key stakeholders in legal reform that affects them is a recurring and depressing theme, even when pregnancy and motherhood are at stake, even when other groups object on the basis of women’s rights. The exclusion of women’s interests in surrogacy reform echoes identical issues in the now defunct Gender Recognition Act reform. As feminists we not only oppose surrogacy and any reform that facilitates it, we also oppose the exclusion of women’s interests from the political process more broadly.

To remedy the silencing of women’s voices on this issue which so heavily affects them, OBJECT has carried out its own consultation of women and women’s organizations. Results will be available shortly.

References

  1. About us | Law Commission. https://www.lawcom.gov.uk/about/.
  2. Law Commission. Building Families Through Surrogacy: A New Law. (2019).
  3. UK, A. S. Surrogacy APPG – We Need Your Help. Surrogacy UK https://surrogacyuk.org/2018/03/21/surrogacy-appg-we-need-your-help/ (2018).
  4. House of Commons – Register Of All-Party Parliamentary Groups as at 31 January 2018: Surrogacy. https://publications.parliament.uk/pa/cm/cmallparty/180131/surrogacy.htm.
  5. Surrogacy: Government Policy – Tuesday 21 January 2020 – Hansard – UK Parliament. https://hansard.parliament.uk/commons/2020-01-21/debates/925AF06F-A059-4093-90B9-073C4ACC326C/SurrogacyGovernmentPolicy.
  6. Legal Reform. Surrogacy UK https://surrogacyuk.org/aboutus/surroref/ (2017).
  7. 13th Programme of Law Reform | Law Commission. https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/.
  8. COTS Surrogacy UK | Become A Surrogate. Cots Surrogacy UK https://www.surrogacy.org.uk/surrogates.
  9. Surrogacy in the UK: pros and cons. Brilliant Beginnings https://www.brilliantbeginnings.co.uk/surrogacy-in-the-uk-pros-and-cons-2/ (2019).
  10. UN Special Rapporteur on the sale and sexual exploitation of children. Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/007/71/PDF/G1800771.pdf?OpenElement (2018).

You may also like