Surrogacy: Isn’t there a better way?

A major consultation on surrogacy is proposing significant – and concerning – changes to the law and regulation of surrogacy arrangements in the UK.

Back in 2017, the Law Commission of England and Wales and the Scottish Law Commission were asked to conduct a review of the law governing surrogacy. They have undoubtedly done a thorough job with their consultation paper, proposing a ‘root and branch’ reform of UK surrogacy law. However, some aspects of the new proposals are ethically and practically concerning.

One year before the Surrogacy Arrangements Act (1985) was passed, the Warnock Report recommended strong prohibitions against commercial surrogacy: “even in compelling medical circumstances, the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits… That people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection.”

However in the subsequent 34 years since the 1985 Act, societal attitudes towards surrogacy have tangibly shifted and surrogacy has now become more accepted as an option for starting a family.

However, is a change in attitude towards family and parenthood sufficient reason to re-write the law on surrogacy?

Britain is rapidly becoming a ’world leader’ in family breakdown, and children are suffering as a result. Current surrogacy law exists to protect the most vulnerable people, namely the surrogate and the child. Should we be embracing new laws that serve to further complicate family dynamics and undermine the current protection?

Despite its increasing acceptance in society, surrogacy raises ethical and theological questions.

Previous blogs (see here and here) as well as a CMF File, reflect on biblical principles. The Law Commissions have taken as granted that ‘surrogacy is an accepted form of building a family’ therefore this current consultation debate is now not about if surrogacy should be allowed, but rather how it operates in society today.

So how are Christians to engage with this issue?

The consultation document covers various aspects of legislation around surrogacy, but I will highlight two particularly disturbing areas.

1. Who should be the legal parents at birth?

Currently, the legal parents are the surrogate and either her spouse/partner or the ‘intended father’ where his sperm was used. The ‘intended parents’ obtain legal parenthood through applying for a ‘parental order’ six weeks after birth. Furthermore, surrogacy arrangements are not enforceable, to allow a surrogate to change her mind at any time in the first few weeks.

The Law Commissions propose a ‘new pathway to legal parenthood’ so that the ‘intended parents’ will be the legal parents from the moment of birth.

Granted, the suggested new pathway would include some safeguards, including the fully informed and voluntary consent of all parties. There is a proposal for a statutory requirement for implications counselling, provided by suitably qualified counsellors, and for independent legal advice to reduce the risk of exploitation.

However, consider, what if the surrogate finds that she has fallen in love with the tiny human inside her?

Even the consultation document states that ‘it is psychologically difficult for a woman to hand over a baby she has gestated and given birth to’ (section 13.97b). Yet under the new pathway, she has no legal claim to the child. Sure, she has a right to object; but the prospect of a difficult legal challenge may overwhelm many surrogates, particularly in the days following childbirth. Any degree of pre-conception counselling cannot act as a safety net in such circumstances.

I would echo the words of Sir James Munby that ‘we must retain the rule in section 54(7) that the surrogate cannot give an effective consent less than six weeks after the child’s birth. As in adoption, it is an essential safeguard.’

A clear connection develops between mother and child in the womb, which increases in quality throughout pregnancy and after birth. It seems ironic that, despite stating that UK policy is committed to acting in the best interests of the child throughout life, the initial act played by grown-ups is to remove the child from the person with whom the newborn has forged a deep and intimate connection.

2. Should payments be given to surrogates?

Consultees are asked to consider which categories of payment the law should allow ‘intended parents’ to pay to surrogates:

• ‘Essential costs’ only?
• ‘Additional payment’ (eg. domestic support during pregnancy or antenatal yoga classes)?
• Payment for simply for providing a service?

A practical response to the consultation questions is needed here. Allowing ‘payment’ for surrogacy sets a worrying precedent, as this would transform the arrangement into a commodifying profit-making venture. Being a surrogate is not a form of employment, so we ought to be wary of offering ‘payment’ akin to that made in the world of business and commerce.

Nevertheless, assuming there is no coercion involved, the surrogate has autonomously chosen to help others, at great personal inconvenience and no small amount of risk. She should be entitled to reimbursement of essential costs related to the pregnancy simply because she is a human being, to be treated with the utmost respect and dignity. Crucially, receipts should be provided for all costs incurred, to provide evidence that any payment is directly related to the pregnancy. Some may view it as harsh to refuse payment beyond this, but additional payments will (albeit sometimes unintentionally) encourage surrogacy for the wrong reasons.

A central question here is whether a surrogate should be paid simply for providing a ‘service’.  This would inevitably make surrogacy a lucrative form of making money. Yet a woman’s body is not an asset to be bought at a price and neither is a baby a product to be ordered and sold.

To offer such payment is no different to ‘renting a womb’. To introduce a financial motivation for surrogacy would open a can of worms – there would be vested interest, competition between agencies – offers that vulnerable people simply cannot refuse. It would pave the way for exploitation and abuse, as has been seen in India and Thailand in the not-too-distant past.

It should not be forgotten that pregnancy is a risky business, with high stakes for both mother and baby. Although it may sometimes superficially look like an altruistic gift, the dangers are all too real. As the number of surrogate pregnancies rises, the incidence of complications will increase. Women considering becoming a surrogate need to count the cost without the prospect of financial gain playing a role in their decision.

There are many people in the UK who would make excellent parents, who could attain parenthood through surrogacy. Nonetheless, it seems counter-intuitive that the number of abortions is trending upwards while there are calls to build families through surrogacy. It seems illogical that there are children in a pressurised care system, in need of loving parents, while some go to the extreme lengths of surrogacy to have their own children.

Isn’t there a better way?

The 500-page document can be found here. A shorter summary is also available. The period of consultation is open, opinions are welcome, submissions may be made until the deadline on 11 October 2019.

Kelly Hibbert is a junior doctor