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“Whole body gestational donation” for surrogacy: creating new life from death. What could possibly go wrong? – Guest Post from Paula Boddington

There has been considerable attention to a paper by a Norwegian philosopher, Dr Anna Smajdor, in the journal Theoretical Medicine and Bioethics, outlining the case for what she calls “whole body gestational donation” (WBGD) as a form of surrogacy. This astounding paper was picked up first by Reddux, and since has received attention not just on social media but also in publications such as the Daily Mail and Cosmopolitan. The reaction is, in the main, mostly one of astonished revulsion, with a few voices as shown here (see the comments under the Daily Mail article).

The gist of Dr Smajdor’s argument is as follows: In 2000, Rosalie Ber suggested that women who have been diagnosed according to the brain death criteria, or who are in a persistent vegetative state (PVS) could be used as gestational surrogates. Yet, “surprisingly”, says Smajdor, this seems not to have been implemented anywhere in the world. Smajdor makes a few adjustments to Ber’s proposal, limiting it to women diagnosed as brain dead, and argues that with prior consent of the woman, it could provide a useful means to achieve pregnancy for those unable to carry a child to term, or, indeed, as an alternative to pregnancy for any woman, given that pregnancy is not entirely risk free. The existing system of organ donation is used to justify this, hence the description of “whole body gestational donation” which sees this as analogous to donating separate organs or body parts to save life or improve health in other individuals. Much could be said in comment on this paper but here we will simply make a few remarks…

Firstly, there are many reasons why this proposal does not seem to have been implemented, one of them being the high cost of sustaining a patient on life support, which would mean that to initiate and sustain a pregnancy until viability would be likely to involve costs in the hundreds of thousands of pounds if not more.

The high costs, plus other practical problems, does mean that this form of surrogacy may never be used in practice. But this does not imply that we should be complacent. One reason for concern is that such extreme proposals are often used rhetorically in debate. A troubling scenario is suggested. There is a general outcry. Then along comes the counter response: “We are not going to do anything so terrible! We agree this is going too far. We are proposing we do something far more reasonable!” Or perhaps, often later once the fuss has died down a bit, “We will do this, but don’t worry, we’ve listened to concerns, we’ll do it only with safeguards.”

But the proposed policy may be “far more reasonable”, may have “safeguards”, but is still nonetheless full of problems. “Not so bad”, may still be not good enough.

And a second reason for concern is that even if Smajdor’s proposal is never adopted, the ways in which she argues, including her view of childbirth, and of the human body in general and women’s bodies in particular, are firmly representative of much mainstream influential thinking in bioethics. There are many commonly used ways of arguing and of thinking about ethical problems which tend to skew towards certain “rational” sounding solutions, often favouring the use of new technologies, but which frequently present only a very limited and biased view of matters. Let’s look at just a few of the problems with Smajdor’s reasoning, problems which occur again and again in the field of bioethics.

We can start by looking at the analogy with organ donation, because it will alert us to some major problems. The argument goes by analogy:

X is really the same as Y. We accept Y. So we should accept X, in order to be consistent.

We accept organ donation. So we should accept donating the whole of one’s body, not just parts. Otherwise we are being irrational. “Those who accept brain stem death as an adequate basis for organ donation, should for consistency acknowledge its acceptability for WBGD as well”, opines Smajdor.

But Smajdor has actually shot herself in the foot by using organ donation as her model, because everything we know about organ donation confirms that human beings are not simply “rational” creatures, and the body is not merely a machine to be broken into spare parts.

Rates of organ donation are critically dependent upon sensitivity to the feelings not just of the donor but crucially of their families. Critical accounts in the media can greatly impact rates of donation, and sensitivity and empathy in explaining the situation and requesting consent of relatives is vital. Spain is often held up as having a particularly successful organ donation and transplantation system. This may be credited to its “soft opt out” system where the default position is that of consent, but critical to this is the extensive training in communication and sensitivity for those involved in requesting permission from families. Critical too, is widespread public understanding and acceptance, respect for those who opt out, and widespread agreement on the good that is being done by successful transplantation. (Remember the controversy that George Best had a liver transplant, only to continue drinking.)

How we treat the dead, including those who donate bodies, tissues or organs, is a deeply ingrained part of human culture. The very earliest signs of human civilisation show elaborate concern for proper burial. Disrespectful treatment of the dead has been used to mark disdain for enemies and criminals. But this, we now find abhorrent, showing how strong our respect for the dead is even in our “rational” and “scientific” age. We are moved to find that elephants also show respect for their dead. We cannot wave away these concerns with a few so-called “rational” arguments.

But this is precisely what Smajdor seems to do in her paper.

Smajdor acknowledges that in WBGD, the focus will move from caring for the patient, to using the patient’s body as a “repository of tissues that can be used to benefit others”. But, she says, this is just what happens anyway in organ donation.

Yes, it is. This is precisely why extreme sensitivity is needed. This is precisely why a different medical team deal with donation, not the team caring for the patient. This is precisely why, ideally, trained staff communicate with and care for the family. All this is overlooked in the name of “rational consistency”.

In the world of pure reason, truths are universal and eternal. Smajdor has no sense of time as for her it makes no difference. She recognises that in organ donation, we have to extend ventilation after brain death is diagnosed to keep the organs in a healthy state before they are removed for transplantation, and that in whole body gestational donation, this time would be extended. “But ventilating someone for two days, two weeks, or two years makes little difference except insofar as it forces us to acknowledge what we are doing before we hasten onto the next stage,” she writes.

But we are creatures who live in time, not in the abstract world of reason. Our experience of time is, well, an essential part of our lives, is woven into our entire embodied existence and development, our lives, our birth, our death.

Indeed, for families of those who donate organs, the time their relative spends on ventilation, and the harvesting of organs, does make a significant difference. The manner in which the family can say goodbye changes. This is not to be dismissed, and the generosity of families who willingly agree to this for the sake of others should be acknowledged. Smajdor seems to think that the issue can be resolved into overcoming our “distaste” for sustaining brain-dead patients for long periods. The “discomfort” here, she suggests, “relates to the liminal state between life and death that brain-dead patients occupy”, as if overcoming this discomfort is akin to, say, overcoming squeamishness at having to pull a splinter out of someone else’s fingernail.

For the rest of the human race, these “liminal states” are the stages of transition between life and death which form critical points of significance and meaning. The recognition of their significance is an integral part of our humanity. Neither at the start, nor at the end of life, does Smajdor understand the importance of how we respond to our embodied existence.

Furthermore, Smajdor has a pick and mix approach to evidence. She bends over backwards to examine the minutiae of the scarce empirical evidence regarding gestation in women who are diagnosed as brain dead while pregnant, speculating optimistically about what might be possible, and observing for example that “there is no known upper physiological limit to the prolongation of somatic function in the absence of brainstem function”. But this simply means we have virtually no evidence, because it’s never been done. Yet Smajdor uses it to imply we could carry on keeping the body going indefinitely. She seems to grasp at any shred of evidence that WBGD can be done. Yet at the same time, any arguments against it are dismissed as mere “distaste”.

The body is seen as a robotic resource, as a machine. The use of reason in this paper shows an instrumental rationality which understands the human body as simply part of the material universe, one more resource to be exploited and used, and as in need of improvement. The fact that even normal pregnancies are not risk free is used as an argument to justify using WBGD for any pregnancy, not simply in cases where an individual or couple cannot otherwise carry and birth a baby. But this is one place where Smajdor’s “rationality”, her mathematical calculation approach to ethics, comes apart – mysteriously, she never explains how eggs are extracted from a woman’s body, because that would remind us of the not inconsiderable risks of egg donation. Oddly as I have often noticed in much bioethics and discussions of technology ethics, it so often seems to be risks that occur in the natural course of life which are counted; risks caused by technology itself are either ignored, or it is assumed that improvements in technology can eliminate them.

Pregnancy, no; injecting a woman with massive amounts of hormones and other drugs to induce ovulation and egg extraction, yes.

The last comment for now concerns the child. Smajdor’s arguments address the physical health and safety of the foetus as it may develop within the womb of a woman who is brain-dead. Naturally physical health is extremely important. But again, she reduces the human being to nothing more than a biological, material creature. If a woman has become simply a “bio” version of a gestation machine, if she is brain dead, the baby born in such circumstances emerges from a static, unconscious and unfeeling mother. What emotional and psychological issues might this bring?

Children now often see their own ultrasounds from when they were in the womb. Recent celebrity same-sex male couples have shown off such ultrasounds, strangely isolated images, the mother entirely absent. The woman who bore a child in its first months from conception to birth is notable by her absence. What lack might such children grow to feel when they finally understand their origins? And what lack might a child feel who is born of a brain-dead donor, kept alive on ventilation for the entire period of gestation?

In surrogacy from WBGD, this is not parallel with those thankfully rare cases where a pregnant woman suffers some calamity and the pregnancy is sustained after a diagnosis of brain death to produce a child that she had wanted as her own. For in cases of WBGD surrogacy, under this scheme of technical rationality, a scheme which treats bodies as bits and pieces, and as machines to be exploited, the brain-dead woman is used as if she simply as an incubator or useful storage unit.

Of course she is never that. There are intimate biological links between a woman and the child she carries, even in the absence of any genetic relatedness. Fine-tuned adjustments to the mother’s physiology occur. Communication between mother and child takes place on many different levels. Free foetal DNA enters the maternal bloodstream. Stem cells from the foetus can help repair the mother. The growing child will recognise sounds, the mother’s voice, different tastes, the pace of the mother’s gait.

The consent of the woman to WBGD does nothing to remove these facts of human development or their significance. To focus on consent as a means of resolving ethical problems is again to see the question in terms of an abstract rationality, not in terms of the grounded biological reality and connectedness to each other which forms the underpinning of our mortal existence, which frames our moral compass.

In some jurisdictions, the families of those who donate organs may be sent anonymous “thank you” cards, or be updated anonymously about the welfare of those who received their relative’s organs. This is often a source of comfort, but must be handled with sympathy and sensitivity as families may feel their loved one “lives on” in others. With whole body gestational donation, these relatives will have waited months and months to bury their relative. What of their feelings about the child?

At birth, the child will be removed from the womb, and, presumably, the ventilation will be switched off. Will Smajdor and her bioethical colleagues tell us that concern for this is based on “irrational” feelings about the “liminal” states at the start of life, on “disgust” which we must overcome?

Arguments are sometimes presented as more rational, the more they abstract from reality they become; the more “emotional” the response the more it is dismissed or belittled. Good luck bringing up a baby on such a regime of pure reason.

Will it be left to the rest of us to explain that, no, human beings are not simply biological creatures to be manufactured to order; the dead are not simply vessels to be used to satisfy the desires of others for children. We need to explain to these “bioethicists” that, as significant as a child’s birth day is, so is their journey from inside the womb of great significance, and not just to the child but to the mother; just as the journey we all take out of this life is significant, and not just to the individual, but to all who love and care for us.

~ Paula Boddington is a moral philosopher. Paula has published on a wide variety of topics including the ethics of organ donation and transplantation, clinical genetics and genomics, and the ethics of new technologies.

Motherless doesn’t exist

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I was pleased to see coverage of a recent surrogacy dispute in the mainstream media last week. Pro-surrogacy lobbyists say these cases are rare but we cannot be sure of this. The family court is closed to the public and it is only with the judges’ permission that details of a case be released to the press. It was Julie Bindel who sought permission to write on the case of Z (the child) and her article was published in The Critic in June, with the mainstream press picking it up in The Times, The Telegraph and the Daily last week, so it it feels like a good time to revisit this particular case.

I am limited in what I can share for obvious reasons, but I can say that I am honoured to know and support the surrogate mother from when we met 3 years ago to today. She is the picture of dignity and strength in incredibly challenging circumstances.

When such disputes happen there are lifelong consequences for all involved. Perhaps what pro-surrogacy lobbyists mean is that it rare for judges in the family court to rule in favour of the surrogate mother. Such as this case where the commissioning parents were not entirely honest about a condition one of them suffered from and the surrogate mother wanted to withdraw her consent as she considered them to be unsuitable parents. The child was placed in foster care.

Or the case of a surrogate mother who, as she already had a large family and with no genetic connection to the child, the judge decided that the commissioning couple should retain custody. The surrogate mother is allowed to visit the child 6 times a year. (Significantly, in this case, the court notes state that a parental order “tells one nothing about what the best welfare arrangements for the child will be after birth.”)

We know of UK cases where there is significant pressure on a surrogate mother to agree to the parental order and situations when her consent is not forthcoming it can be ‘dispensed with’. Marie Anne wrote of her experience and told us that counsel for commissioning parents argued that because a UK surrogate mother had tragically died and was therefore unable to give her consent, so should she, a very much alive surrogate mother, have her consent dispensed with. (It’s likely that the wider public wouldn’t believe this unless they read about it in the papers or heard it on the news, but coverage of Marie Anne’s case was wholly positive at the time.)

These cases are complex and I am not a lawyer, but my reading of the case of Z it is that the commissioning parents had the early intention to remove the mother from their lives once they got what they wanted; the child. It was never their intention to have her as an extended family member, despite what they promised. The court proceedings made it clear that commissioning couple didn’t want a mother in Z’s life, there was “no vacancy to fill” and G, the surrogate mother was referred to as “just an egg donor”.

By applying this reductive, dehumanising language and failing to acknowledge reality and her role as mother, their aim to sever the connection with her child was made starkly clear.

Some say that G could have changed her mind and kept her son but once ‘signed up’ to surrogacy, it is very difficult to back out. It’s not a matter of simply changing your mind. You are pregnant with child you are told is not yours.

Whilst within the legal limits, a surrogate mother can access an abortion in the UK, but an article from New Zealand, where the laws are similar to ours, a woman terminated her surrogacy pregnancy and a politician (with now two surrogate born babies) put forward a private members Bill. The wording of which alludes to access for abortion in a surrogacy pregnancy possibly coming under threat.

“Labour MP Tāmati Coffey, who, with his partner Tim Smith, welcomed their son Tūtānekai by surrogate in 2019, currently has a members’ bill in ballot calling for modern laws for modern families. It includes reform of birth certificates, providing a way to enforce surrogacy arrangements and creating a register of potential surrogates.”

Outrageously, accusations of homophobia were made of G. In my view this (along with a legal argument of human rights) this was done to garner sympathy, claim victimhood and tarnish G as bigoted. If a woman was homophobic would she seek to engage in having a baby for a same-sex couple? No.

Whilst social services were in support of the two men the clinical psychologist in the case said “The fathers…claimed that they are a ‘motherless’ family” and it is from here we get the title of this blog: “Motherless’ doesn’t exist.”

Ultimately the judge ruled in the best interests of the child and that was for the child to know his mother and have an ongoing relationship. It is an unprecedented decision where “free and unconditional consent that is required by section 54(6) of the Human Fertilisation and Embryology Act 2008” was central to the ruling.

Had all parties stuck to the original agreement then the situation would undoubtedly be entirely different for the adults and more importantly, very different for the child. But the State cannot legislate to force a friendships in any form and this case demonstrates how the ‘friendship’ was temporary, one sided and transactional. It was not based on the natural-founded and enduring friendships we are led to believe is common in surrogacy.

Readers should be reminded that reform proposals seek to introduce a model of commercial surrogacy where a pre-birth order transfers the parental rights at birth. The mother gives her consent to transfer her parental rights before the birth but she is not required to confirm her consent afterwards. The Law Commissions of England and Wales and Scotland found this to ‘disrespect’ her autonomy:

“A requirement for further consent after birth also suggests that the surrogate’s consent before conception is not adequate, which does not respect her autonomy.” ~ Law Commission’s Core Report, Page 37.

But as we know from this case, a lot can change between conception and birth.

With the ‘cooling-off period‘ (which I use deliberately as a contractual term) much reduced from 6 months to just 6 weeks after the birth, a surrogate mother has much less time to raise the alarm, decide to try to reclaim her parental rights or instruct lawyers. Under the Law Commission’s preferred model her name has already been removed from the birth certificate. Her name, rights and role in the child’s identity documents, knowledge of their relatives and experience of their family has been erased from the outset.

Thankfully, this is not the case for Z who will know his mother but it would have been very different had reform been in place at the time.

We would like to thank the legal team who supported G and we invite anyone who is or knows a surrogate mother with regret to contact us.

Open letter to the surrogate mothers – Guest Post from Anonymous

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Dear fellow surrogate mothers,

The baby you have in your womb is yours. Any woman that has a baby in her womb is a mother, she is the mother of her baby. It’s a law of nature and no one can change it.

Don’t give them this baby, don’t give them your baby.

This baby is yours, you feed it with your body. This baby feels what you feel, shares your food, calcium from your bones, your hormones. This baby is afraid when you are afraid, feels your laughter inside. They are happy when you are happy.

Don’t think this baby in your body is theirs because they have spent so much money. That you are just an ‘extreme babysitter’ and you are just ‘borrowing’ this baby and will be ‘giving the baby back’ at birth. No money can ever be a ‘compensation’ for the very existence of a human being. Money shouldn’t turn a pregnancy into a service, no amount of money can ‘reimburse’ you for what you are doing.

Don’t think this baby is theirs because you are ‘gestational’ surrogate and not genetically related to him or her. Because this baby knows only you, needs you, wants you and loves only you. Because a fœtus knows nothing of genetics and does not care if they were conceived in a lab. He or she doesn’t care about IVF, clinics, money deals and all the discussions and paperwork between the adults and agencies that commissioned them. This baby is growing inside you and wants to continue growing with you, to be raised by you.

You are doing the most wonderful thing ever, you are creating a human being and you are going to give birth to a new life. They have no right to claim rights to your baby for the mere reason they have paid. Nobody can buy a human being, unless of course this human is a slave for trade and you are also a slave through surrogacy. This is the reality many do not want to face.

The fœtus inside you is your little precious life, and for the moment it is only you. The only person in the world that this baby will know is you; your odour, your diet, the sound of your voice, the movement of your body, your touch, your affection. You are the most important person, the only person this baby wants in their life, the only one able to fulfill their needs.

When this little life comes into the world, it will know only you. It will look for your touch, your breast, your taste, your face, your protection. Skin-to-skin contact with you will bring him or her serenity, joy and tenderness. Don’t be cruel enough to refuse this.

Don’t think you’ll receive love, gratitude and respect for what you’re doing. You’ll just receive incomprehension and contempt from institutions: no one will understand that you could have abandoned your child – whether you were a traditional or a gestational surrogate mother – because abandoning your child at birth is not forgiven. Because getting pregnant, carrying and bringing a child into the world, only to abandon it at birth – voluntarily and on purpose – is unforgivable.

Leaving your baby, giving it away is the worst trauma you can inflict on a fragile, new and precious life. The trauma of abandonment, being handed over to strangers will cause loss, confusion, feeling of emptiness and anxiety. The separation from you will create disruption, the deepest wound anyone can ever experience.

I wish I had never given my baby to them. I pray my son can ever forgive me for having abandoned him to his pretend (not ‘intended’) parents. It is a mistake I will forever regret.

“I made the biggest mistake of my life, all to help someone”– Guest Post from Marie Anne Isabelle

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Ten years ago I was a gestational surrogate for a family member on the understanding that I would have ongoing contact with the child that I would give birth to. Naively, I did not realise that this would not be a guaranteed in our arrangement. Had I known that it would not be guaranteed I would never have agreed to be a surrogate. I believe I was lied to, manipulated and exploited because somebody needed my uterus.

Surrogacy – being pregnant and having drugs injected into you daily for three months – is not an easy or pleasant experience at all. It inflicts enormous physical demands onto the body and the psychological damage is irreparable. My experience is testament to that. From the moment I was pregnant I was made to feel as though my body was no longer mine and I had no control over it. I was told what to eat and the freedoms around some of my daily routines were completely destroyed. But the worse was yet to come.

As soon as the child was born, I was abandoned by the very people I had helped and was made to feel utterly irrelevant to the child I had given birth to. This whole process had a devastating impact on my mental health to the point I was admitted into psychiatric care.

Anybody would have thought it would have been at this point that support and help would have been given to me, but no, instead the laws allowed for my mental health to be used against me, I was silenced and my consent disregarded so that parental order could be granted.

Unfortunately for those that tried to undermine me, a psychiatrist was employed to ascertain as to whether I had the capability to consent. My ability to consent was established but by this time, after all the abuse I had sustained, it was now difficult for me to give my free and unconditional consent.

I asked for a contact order but was told I would not be granted one as this would have deemed this as a condition. But the condition was central to the original understanding. It didn’t matter. I was then threatened with paying Child Maintenance by CAFCASS if I did not consent to the parental order. (I do not believe CAFCASS should ever be involved in surrogacy cases.) After being threatened, bullied and given endless false promises I relented, as my mental and physical health could take no more. I gave my consent and my parental rights were transferred to her and her husband. To this day I have never seen the child I gave birth to.

This continues to have a devastating impact on my life, I am not sure how I can live without giving birth to a child I will never see. It is not a situation I had ever envisaged I would be in as I would never had agreed to be her surrogate if this was the arrangement. I do not agree with surrogacy, I believe it should be banned completely as there is no pathway for it to ever be safe. It destroys lives and the cost not only to myself, but to many others, has been too great.

The amount of money spent on this by the tax payer should not be ignored either. I have not been able to work, I have been under the care of the NHS for ten years. All of that expense has never been directed to the commissioning parents. It has come from you, the very people who are reading this. That is completely unacceptable.

The Law Commission recent recommendations make no reassurances that what happened to me could not happen to someone else. Instead, they make it more likely. Surrogacy needs to be banned around the world, before more people are exploited and it needs to happen now.

Surrogacy – a new job opportunity?

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Pro surrogacy lobbyists will say that surrogacy isn’t a job but when it is compared to forms of labour it is always to the riskier jobs. Comparisons are made to say, being a firefighter or police officer, but comparisons are never made to other service providers such as being a dentist or a cleaner. We know those roles are low-risk, so it’s subtle but we recognise there is an inherent risk in engaging in pregnancy for others.

With risky employment comes training, health and safety equipment and sometimes a significant risk allowance. If surrogacy was to be thought of as a job then there would be some health and safety guidelines, checks and an uptick in salary. And being pregnant is 24/7 with no breaks and jobs with long hours, like truck divers, rest breaks are scheduled for health and safety. Also, the riskiest jobs in the world have an element of knowingly putting yourself in harm’s way and this becomes part of the deal, and perhaps part of the draw.

With limited research in this area we rely mostly on anecdotal evidence and we have observed some common trends. Surrogate mothers will often have former careers in childcare, teaching, midwifery or nursing, and it seems to be fairly common for surrogate mothers to go on to become deeply involved in surrogacy ‘community’ and subsequently switch careers.

A small 2022 study * from a pro-surrogacy Academic, Dr Kirsty Horsey confirms that most surrogacy ‘teams’ meet through an agency as strangers and though only 47 surrogate mothers completed the survey their careers included midwifery, teaching and nursing:

“Regarding occupation, 12 surrogates identified as being in nursing, midwifery, or health care, seven were in teaching or childcare professions, and 11 in business administration, management, or accounts. Three were solicitors. Other roles included civil servant, police staff, a registrar, a hotelier, a retail role, two students, and two ‘stay-at-home moms’.”

The survey summarises that “Most responses (85%) indicated household incomes below £70,000. Four surrogates said their household incomes were above £80,000.” But it’s worth pointing out that 44 respondents answered that question and a quarter (25%) said they were on a joint income of less than £29k and another 30% said there were on a joint income of between £29k-40k. So that’s over half (55%) who are on significantly less than 70k. The footnotes for this suggests is was badly worded.

And there is a disclaimer: “Given the different professions identified, it is unclear if all respondents gave an answer reflecting personal or household incomes, suggesting that both should have been asked for in the survey. Because of this, it is unclear what weight can be given to these answers.” (Footnote 31.)

These trends bear out in real life further, these example shows that surrogate-mother-to-agency-employee pipeline is real. Take Gina Kinson for example. Having worked in nursing, Gina, a two-time surrogate mother, later became a Co-ordinator for My Surrogacy Journey. Or Sarah Jones, now CEO of Surrogacy UK, Sarah is an Early Years Educator and has had 5 babies for others. Another is Dawn Allen, a surrogate applications and agreement Co-ordinator for Surrogacy UK. Initially inspired to have babies for others after watching a documentary, Dawn came out of ‘retirement’ to have a baby for a couple at the age of 49 whilst working at Surrogacy UK.

So it appears common that a surrogate mother’s career will centre, at least for some, around care-giving and providing a service and having had a baby for others can result in becoming more deeply involved in the industry.

If surrogacy is a vocation where you provide a service in exchange for money, it’s a regular job like any other and one you can retire from. It’s not just ‘favour’ you do for a friend or family member, not least because women are having babies for strangers they are matched with. Surrogacy is no longer what we thought it was when it began back in the 80s. (You may have seen #changingthelandscape used on pro-surrogacy posts and they are not wrong, the landscape has indeed changed.)

In risky jobs we assess and name the risks using clear language in the job description so applicants know what the role entails. (Prostitution isn’t a job, but we have seen it be more commonly referred to as ‘sex work’, as a way to normalise and rationalise the act of using a woman’s body for paid rape as job she chooses to do or a ‘vocation’.) Now there are subtle shifts in language in surrogacy too. Agencies now refer to ‘compensation’ rather than the legal term of ‘reasonable expenses’.

Pregnancy and labour is unpredictable and carries risk. We don’t currently consider surrogacy as a form of employment in the UK, as ‘contracts’ are not enforceable (though that’s a whole different blog), but monetising women’s bodies is a slippery slope.

If you have concerns about surrogacy becoming more widespread, the impact on women and children and what proposed reform in the UK would lead us, please get in contact.

** With 47 respondents to this 2022 survey, this could be roughly just 10% of parental orders as 449 Parental Orders were granted in 2022.

Words from a Midwife: Part Two – Guest Post from Anonymous

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After we published Part One of this blog last week, a number of midwives got in touch with us to tell us more about Royal College of Midwives’ webinar on surrogacy. Part Two is a another written account from a Midwife who attended the webinar who also wishes to remain anonymous. If readers wish to get in touch with us, please use the contact form .

Prior to the webinar I sent the RCM a complaint regarding how inappropriate it is to platform an organisation that offers material incentives such as Ann Summers vouchers and apple watches to potential surrogates. Following my complaint and complaints from other midwives, the RCM sent out a standard response stating that the RCM is neither for or against surrogacy. They said they were neutral on the subject. The webinar panel was then amended to include other speakers such as Louisa Ghevaert, a family lawyer and Sarah Jones, surrogate mother and representative of Surrogacy UK, the largest surrogacy agency in the UK.

The webinar started with the host informing everyone that it would not be a debate on the pros or cons of surrogacy and it would be an educational ‘safe space’. It soon became apparent with the lawyer’s presentation that the webinar was heavily pro surrogacy. Louisa spoke at length about the law reforms proposed which included removing surrogates’ rights to be the legal parent at birth. This element was glossed over so I asked a question about whether this included surrogates who were genetically related to the baby and whether that means it completely removes the surrogate’s ability to change her mind following the birth. I also commented in the chat that this scenario would mean midwives would have to remove babies from birth mothers and hand them over to commissioning parents and asked how we could be expected to do this? Both my question and comment went unanswered. Louisa continued to focus on how wonderful law reform will be as it provides criminal history and safeguarding checks for all involved. She insinuated that although the government had stated it will not be taking up this reform that this was just a formality and it will be back on the table in a month’s time.

Sarah Jones was next to present and she spoke at length about her personal journey of being a surrogate and her motivations for surrogacy. Sarah did answer my question, she admitted that she had undertaken both types of surrogacy ‘host’ and ‘straight’, meaning she had given away her own genetic children. She stated that any commissioning parents involved with Surrogacy UK had to agree to having an on-going relationship with the surrogate after birth. Although, she failed to mention how this would be enforced. In my professional experience the surrogates I have cared for have both been ‘ghosted’ by the commissioning parents following the birth and have no on-going contact. (In those cases the surrogate born child was not genetically related to the surrogate mother.)

Sarah spoke about how she is ‘bonded’ with the children she was a surrogate for but no mention of how the children feel being born by surrogacy or how her other children feel knowing they have siblings out there who do not live with them.

Michael and Wes were next to speak. This was the most difficult part of the webinar for me as I find their whole organisation to be completely unethical. They offer membership ‘benefits’ which include Apple watches, Gousto vouchers, Merlin entertainment vouchers and Ann Summers gift cards. I asked them if they thought offering these benefits blurred the lines into commercial surrogacy. I was not expecting a reply to that particular question, however Michael did reply:

“All of the membership benefits were created from three years of research to the surrogacy community. Every membership benefit has a health, nutrition or support benefit to all our members.”

I struggle to understand what support benefit an Ann Summers or Lovehoney voucher brings to a pregnant woman. It highlights to me how loosely regulated the remuneration for surrogacy is. On the surface it may seem that the UK has an altruistic model of surrogacy but in reality we have a system of commercial surrogacy in disguise with unknown sums of ‘expenses’ being paid. I have also witnessed expensive gifts exchanging hands. I commented about how I felt it was unethical to set up a surrogacy agency in a developing country such as Mexico which has high levels of poverty. This comment went ignored.

What stood out to me the most throughout the whole webinar was the complete lack of discussion regarding the children born through surrogacy. The focus was on how midwives should support both surrogates and commissioning parents. There was also a complete lack of understanding from all presenters about the role of the midwife and who the midwife owes a duty of care to. I asked Louisa about what should midwives do following the breakdown of a relationship between the commissioning parents and surrogate. Instead of getting the correct answer that midwives only have a legal duty of care to the surrogate I got a very long spiel about being compassionate and kind to the commissioning parents!

It is difficult to understand how the RCM can claim to be neutral on surrogacy and then put on a webinar with only pro surrogacy speakers, there to give rose-tinted glasses spin on surrogacy and the law. It was biased and far from neutral.

Disappointingly, most of the attendees seemed to be in favour and left gushing comments about how wonderful it all is and how fabulous they think Michael and Wes are. It goes against everything we are taught as midwives regarding the mother and baby dyad, during pregnancy and following the birth. It seems the rights of anyone wanting a child for themselves supersedes all ethical and biological considerations.

We know the relationship between mother and child starts in the womb, we are monitored on our discussions with women by the ‘baby friendly initiative’. We must inform women that their babies can hear them in the womb, that they will recognise their voice and the bond starts before they are born.

Is this all forgotten when someone is commissioning a woman to have a baby for them?

Battle of Ideas – The Morality of Surrogacy

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Our last blog looked back at our activity in October but things have moved on quickly and since posting the government have confirmed that the reforms we have been fighting are not proceeding.

We are thrilled to hear this news but want to continue to debate the proposed reforms and raise awareness of what they would mean if passed into law. What better way than to share the footage of the debate called “The Morality of Surrogacy” from the Battle of Ideas and continue the conversation.

We invite readers to tell us what you think of the law reforms through the comments, our Twitter (@WombsNotForRent) or via the contact form. What do you think of surrogacy as a way to have baby, what do you think the law should or shouldn’t do?

For those who prefer to read rather than watch, we also share the speech by Co-founder, Lexi Ellingsworth below.

Text from Speech:

1. Good morning. Thank you so much to Baroness Fox and Battle of Ideas for inviting me here today.

2. My name is Lexi Ellingsworth, and I am the co-founder of Stop Surrogacy Now UK, a grassroots campaign group which formed four years ago in direct response to a public consultation by the Law Commission to relax surrogacy laws in this country; an issue I will talk more about in a moment.

3. Firstly a word on language. We use ‘mother’ as opposed to ‘surrogate’, as ‘mother’ is not only a social term – or even a moral term – but a legal term. The term ‘surrogate’ is dehumanising in our view, and erases what is actually happening in surrogate pregnancies. Under The Children Act (as recently tested by the case of Freddy McConnell) a woman who gives birth is a mother and this not only gives parental rights but also responsibilities for the child. In the MConnell judgment, and others from the Family Court, the term ‘commissioning parents’ is used in surrogacy cases, so we apply the same wording.

4. By its very nature, surrogacy – the act of having a child for someone else – directly affects women and children. Women’s bodies are ‘used’ for our reproductive capabilities and in every surrogacy arrangement a newborn is taken from his or her mother at birth.

5. We know about the mother/baby dyad and the 4th trimester, from decades of research and straightforward common sense. Babies know their mothers. They know their heartbeats, voices and even their smell from tasting amniotic fluid. A baby knows their mother and not the gametes that are conceived from. A surrogate born baby does not know they are born through a surrogacy.

6. For those who haven’t come across them, the Law Commission’s “new surrogacy pathway” proposals:

o give commissioning parents, parental rights at birth, removing the surrogate mother from the birth certificate

o cuts the time a surrogate mother has to change her mind to just six weeks (even then she will not have any automatic right to custody or access, even in cases where she has used her own egg)

o and would allow open advertising for surrogate mothers, meaning young women who may never previously have given thought to this will be drawn into it as demand grows.

7. The Law Commission further proposes:

o A minimum age of 18 for commissioning parents and just 21 for surrogate mothers.

o They do not require a mother to have previously given birth or completed her own family before embarking on a pregnancy for others.

o And they would allow for a woman to continue to use her own egg – meaning at the point of handover the child is literally being given away from his or her own genetic and birth mother.

8. The youngest surrogate mother in the UK that we know of, was a single mother aged 21. She became interested in surrogacy after watching a tv documentary and was matched with a couple through an agency. At first, she continued to have a relationship with the family and visited every birthday, but in a recent tv interview she explained that she had lost contact with the children whilst they were still very young. The ‘friendship model’ was not ongoing for her.

9. In a small UK study of children born by surrogacy, by age 10, only 60% were still in touch with the surrogate mother. That’s 40% having no contact by the time they reach puberty. We understand some claim the UK has a ‘friendship first’ model: but in our review of submissions to the Law Commission consultation, we found multiple examples of would-be commissioning parents saying this is not what they wanted, they didn’t want a ‘third parent’ and they did not want an ongoing relationship with the mother of their child.

10.One of the stated aims of reform is to dissuade UK commissioning parents from seeking surrogacy abroad, which the Commissions acknowledge “can bring a greater risk of exploitation of women and children”. Despite this, no changes are proposed for those bringing children into this country from international commercial surrogacy and children who are conceived and carried this way will likely never see their birth mothers again.

11. The proposals would continue to allow for gifts and ‘recuperative holidays’ for the surrogate mother and her family. One woman’s surrogacy pregnancy was inspired by her own mother and her childhood memories of holidays they had as a result of her mother’s multiple surrogacy pregnancies; so we are now starting to see surrogacy continue down the generations.

12.Benefits offered by one agency include Apple products, theme park passes and vouchers for an adult retailer.

13.But money is not the only reason for women to engage in surrogacy. Some surrogate mothers have said themselves that it is addictive. One surrogate mother said she had low self esteem and she wanted to ‘prove she was a nice person’. We believe women like this are at very real risk of coercion and exploitation. We know of women who have been pressured and groomed by friends and family.

14.A surrogate mother we have spoken to told us her motivations were to help as this is something she could do. She later recognised how the expectations of her were deeply rooted in her upbringing and being socialized as a young woman to Be Helpful and Be Kind. She referred to this as Toxic Femininity and now feels strongly that women, their eggs and their wombs are not a resource for others.

15.We hear from women who have surrogacy regret, who find themselves ejected from private online groups when expressing doubts or a change of heart. When they find themselves bonding with their unborn baby they are reminded they are just the ‘Oven’ for the ‘Bun’ or told they are an ‘Extreme Babysitter’ and not The Mother.

16.There is little study of surrogacy regret but we have written about one study from 1994 which is entitled “I wanted to be interesting. I wanted to be able to say I’ve done something interesting with my life” As the UK law had only been introduced less than a decade prior – and with the popularity of surrogacy at the time in no way reflecting the levels we have today – this can only serve as a snapshot in time but also as a stark warning for the future.

17.The issue of surrogacy goes to the heart of equality for women: seeing women as human beings and not body parts to be rented out, or treated like commodities; our reproductive capabilities are not to be capitalized on for the benefit of others.

18.It remains an inconvenient truth, that it is women who have babies and it is women who are mothers, and babies are not ‘blank canvases’, but human beings with rights of their own.

19.The Law Commission, pro-surrogacy lobbyists and surrogacy agencies, would have you believe these reforms modernize an outdated law that simply needs clarifying, and that they improve safeguarding of children…when in reality they enable and legitimize, through state sanction, separating mothers and babies – which is in opposition to all NHS guidance and best practice and against the UN Convention on the Rights of the Child.

20.Surrogacy remains a subject many have concerns about – the Law Commission stated in their report that the majority of responses “opposed most or all of our provisional proposals for reform, and advocated instead for surrogacy to be prohibited”. But they said that banning surrogacy is “outside the terms of reference”.

21.You will hear arguments today about ‘choice’ and rights to do with your own body what you want in a free society. Women can and should have rights over their own bodies but not what is done with someone else’s: in this case a newborn baby.

22.The last few years have reminded us that laws are made for ALL of us, they are not meant to prioritize or satisfy a small section of society. Laws are intended to protect everyone and to uphold the rights of the most vulnerable. Law-makers must balance the demands of a small number of adults with the rights of children, and what we find to be acceptable in wider society.

Thank You.

~ends~

October 2023 ~ Lexi Ellingsworth

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From Liverpool, to Glasgow and back to London. October was a busy month for me. I was honored to be asked to be a member of the panel at fringe event at the Labour conference for Labour Women’s Declaration, and to debate ‘The Morality of Surrogacy’ at the Battle of Ideas (footage on that soon). I had some fascinating conversations at both events and at FiLiA and I was greatly comforted by the volume of support we had at the march led by Glasgow Tactical Feminists.

The women of Scotland came in their numbers to support us against reform of surrogacy laws and the police did a fantastic job in facilitating our safe passage through the streets to the River Clyde as we gathered under La Pasionara.

It’s safe to say that our tiny, single issue campaign has swelled with support since it’s conception in 2019, in fact this year it has doubled in size with the launch of Surrogacy Concern! We proudly campaign together as we draw more and more interest and understanding of our position on law reform.

Throughout the month I spoke to many in person, via webinars, by phone and on email. My currently croaky, faded voice is testament to the number of conversations I had! I spoke to those who thought surrogacy was simply a way to have a family with assistance (they hadn’t heard about the proposals), others had heard a just a bit but hadn’t thought about them in any detail and what they mean for women and children.I spoke to gay men who reject surrogacy, young women who felt preyed upon by egg donor adverts and to women who have come across surrogacy through friendships or through their jobs, but hadn’t been able to put their finger on what it was that bothered them about it.

The gay men spoke about their desire to be fathers and their acceptance that it may not happen for them. One man spoke about his friends who have a surrogate born child and he noted the absence of a mother. A young woman told me of her shock that surrogacy has become so commonplace and her worries about what this means for women in the future. One young man I spoke to told me about sperm donation and the lack of support he had when he was rejected. I found all of these conversations insightful and painful at times, with the emotion these people shared with me and I felt lucky.

Every single engagement I had, long or short, left me with the concept of how complex and multi-layered surrogacy is. Having been elbow-deep for four years I confess I had lost some perspective. It was refreshing and invigorating, tracing my steps back to when I tumbled down this particular rabbit hole.

So what’s next? Well I’m back, there’s lots to do, lots more ground to cover and action to take. We have been inundated with emails and direct messages and myself, Liz and our small group of volunteers will be responding as soon as we can.

The pumpkins are disintegrating, the treats are all gone and soon it will be Christmas. But October was pivotal and we’re just getting started.

Regulating the international trade in babies

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In just a few short weeks we have noted surrogacy scandals in China, Greece, Vietnam and Georgia. These illegal operations are investigated by the police, often for long periods of time, arrests are made and those involved are punished.

You would think that this would be a deterrent, given the likely prison sentences, but still it continues and appears to be happening more and more frequently. I know this as I have been monitoring the media exposure of such crimes since 2019 when I came to the subject of surrogacy reform.

In the 4 years since then I have heard all the arguments for regulation. Many argue that banning surrogacy completely sends the process underground; they say it cannot be stopped as people want to have a baby and this is their only option. They argue that the best way is to build a legal framework so surrogacy can happen safely, even ethically.

Following the return of the the Irish Dail from summer recess, it is likely that the Assisted Human Reproduction Bill will be heard this Autumn. Currently at Stage 3 for amendments, the Bill looks at regulating “the provision of any treatment or procedure, including such treatment or procedure for the purposes of surrogacy within the State, that involves the handling of gametes or embryos, or both, for the purposes of establishing a pregnancy”.

The recommendations of the Special Joint Committee on International Surrogacy will probably be included and the Bill has a lot of support from both Senators who have personally benefited from surrogacy and from the general public who have been fed the media line that for infertile couples in Ireland, there are no other options.

The recommendations include that surrogate mothers overseas will be required to sign an affadavit and that surrogacy arrangements are “fairly and ethically compensated”. Whilst politicians in Ireland may be confident of this there is no way they can be certain. What surrogacy agencies and lawyers advise in say, Ukraine, is outside of their jurisdiction. What they can be sure of is that upon landing back on home soil, Irish citizens can secure parental rights through a legal framework: this is the goal, this is what this law will secure.

Historically the treatment of women and children in Ireland shows that motherhood and the rights of women have not always been respected. From the scandals of the Magdalen Laundries and the obstetric violence of Symphysiotomies, Ireland has a shameful history and the leigitimisation of buying babies from women in other countries fails to demonstrate a departure from these outdated ideas of women serving a purpose.

It is right that people committing crimes should be punished. It is not right to legalise the importation and trade in children by exploiting vulnerable women for their ‘reproductive services’.

If you are a resident in Ireland, please write to your TD, you can use our suggested points and resources here to help.

Template Letter to Irish TDs

What about the children? – Guest Post from Alan Neale

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The Law Commissions’ investigation into UK surrogacy law reform came about in response to intense lobbying by surrogacy agencies and law firms. These organisations wanted reforms that would make the surrogacy process easier to navigate, and would encourage commissioning parents to use their services in preference to those of overseas agencies. The reform that the Law Commissions propose thankfully avoids the temptation to go for full commercialisation. It simplifies surrogacy arrangements for commissioning parents, but in doing so it sidelines surrogate mothers, and solidifies the fracturing of the mother/child bond that is inherent in all surrogacy arrangements.

The proposed reform centres on intended parents (as the surrogacy agencies want commissioning parents to be called) becoming the legal parents as soon as a child is born. These intended parents, not the actual mother who gives birth, would be recorded as the child’s parents on his or her birth certificate. Currently at least one of the intended parents would have provided gametes (eggs or sperm) for conception, but under reform this is no longer a requirement. So not only would the birth certificate erase the mother who bore the child for nine months and brought him or her into the world, it would pretend that there was a biological connection between the child and his or her ‘parents’ that didn’t necessarily exist.

Having a birth certificate that denies biological reality so to reinforce the legal status of commissioning parents does not avoid the problems that removing legal parenthood from mothers creates. Under the reform proposals, the surrogate mother will have had to consent, before conception, to give up her child at birth, even though she can’t have known what she will actually be feeling at this time. Some mothers, experiencing a connection with the child that is growing in their womb, will not be able to resist developing a natural bond, and will start to have second thoughts. To preserve the pretence of informed consent, a surrogate mother will be allowed to object, but in a time frame that is ridiculously small (within 5 weeks of birth for Scotland and 6 weeks for England and Wales). She will be intensely vulnerable at this time, and likely being pressured by the intended parents to seal the deal. These are not circumstances conducive to a considered decision, let alone to her long-term mental health. A surrogate mother may agree to forgo legal parenthood on the understanding that she will be able to maintain some contact with her child, but the written surrogacy agreement that she and the commissioning parents would have agreed before conception is unlikely to have mentioned this, and she would have no right to contact in any case.

If the proposed reform gives minimal recognition of the surrogate mother’s feelings, its consideration of the possible feelings of the child as it grows up is almost non-existent. The Law Commission consultation document repeatedly stressed that the welfare of the child must be paramount, but they just assumed that they knew what would be in the child’s best interests, and that these would correspond with those of the commissioning parents. They quoted research, based on a tiny sample of families created via surrogacy which found no adverse effects on children up to the age of 14, to deny that there might be any problems now or in the future. They accepted as a fact of life the likelihood that intended parents will severely limit, or possibly even bar, contact between the child and his or her mother. The proposed reform partially mitigates this by allowing children access to their birth records when they reach 18, which would enable them to learn the bare facts of the circumstances of their birth. The birth certificate would only show the names of the parents or parent who commissioned them, with no mention that the birth resulted from a surrogacy arrangement. But adult children would also be able to access an additional Register of Surrogacy Arrangements, if they knew to look there. This record would name the ‘surrogate’ (no mention of the word mother), the legal parents, and ‘any other gamete donors’ – a document that would reveal, perhaps for the first time, the parties to the agreements that commissioned their existence.

It is understandable that the Law Commissions could not provide direct evidence from the children of surrogate mothers as to what would be in their best interests. Surrogacy in the UK only really took off after 2008 (when the Human Fertilisation and Embryology Act was passed) so as yet there are few adults whose mothers were surrogates. But, although the Law Commissions recognised similarities between surrogacy and adoption, they didn’t consider that the experience of adoptees might be relevant in assessing how children who are the product of a surrogacy agreement might be affected by the break with the mothers who gave birth to them. Nor did they consider the experience of donor-conceived children, and how they are affected by discovering how they were conceived.

The experience of adoptees

My late wife, Angela Hamblin, founded an organisation in 1975 that brought together first mothers like herself and adult adoptees. That organisation, Jigsaw, was instrumental in winning for adult adoptees, the right to see their original birth certificate, revealing for the first time who their first mother was. Jigsaw was also a forum where first mothers and adoptees could share their experiences. For the mothers, it was a chance to share with adoptees their pain at having to give up their children, and to explain the circumstances which had given them such little choice. For the adoptees, it was a chance to share the pain of not knowing their origins, and to express the feelings they had for the mothers they were taken from. For many adoptees, it had only been when they themselves became mothers or fathers that the full extent of the trauma of being separated from their mothers had really hit home. These feelings of loss, it was clear, occurred just as much when their adoptive family was a happy one as when it was less so.

Access to birth records at 18 eases the trauma of separation, but it does not take it away, even when the result is a successful reunion. This was demonstrated in the eloquent testimonies of adoptee witnesses to last year’s Inquiry into forced adoption by the UK Parliaments’ Human Rights Committee.

Angela drew on her experience in Jigsaw in her response to the Law Commissions’ consultation on surrogacy law reform. She referred to the unacknowledged pain, common in both adoption and surrogacy, that comes when you separate a mother and child. She concluded: “I wonder whether in our cavalier and superficial rush to reduce motherhood to merely a transaction between an egg, sperm, and a rented womb we have any idea what we are storing up in the future for those who will be the product of it.”

In 2022 the UK Parliament’s Joint Committee on Human Rights published its report into The violation of family life: adoption of children of unmarried women 1949-1976. Their report concluded that “The adoption practices we have heard about lacked humanity and had a profound impact on the family lives of all involved….The evidence from mothers and from adopted people vividly demonstrates the struggles that individuals continue to face every day in living with these brutal and cruel processes.“

Earlier this month, the UK government responded with less than a full apology, It did acknowledge, however, that “These adoption practices were wrong. We recognise the pain and distress that occurred as a result and are profoundly sorry that so many people have suffered due to these practices.”