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.”
Read more on this on my substack here.
The experience of donor conceived children
Psychiatrist Erich Wellisch observed as early as 1952 that “lack of knowledge of their real parents and ancestors can be a cause of maladjustment in children…This problem deserves special studies and attention”. This maladjustment, later called ‘genealogical bewilderment’ was thought to affect adopted children in particular. More recently, It has been seen to apply to donor-conceived children as well. The advent of DNA testing has led to a massive rise in the number of people exploring their ancestry. One unanticipated result is that significant numbers of people are finding that a parent is not who they expected.
A study in the journal Biotechnology, published in April 2021, explored the feelings of 143 individuals who were donor-conceived. More than three quarters of them experienced a shift in their sense of self on discovering they were donor-conceived, and around a half sought support so to process these revelations.
“A total of 143 responses were collected. Approximately 94 percent were conceived anonymously and almost 85 percent reported a shift in their “sense of self” upon learning about the nature of their conception and about half sought psychological help in order to cope. Nearly 74 percent said that they often or very often think about the nature of their conception and 62.2 percent felt the exchange of money for donor gametes was wrong. Almost 43 percent believed that genetic testing companies ought to offer more complete information about using their products even though 90.2 percent believed being fully informed was impossible.”
Is the government about to change the law on surrogacy in such a way as to contravene the right to family life and to disregard the best interests of the child? Will that risk, at some future date, being subject to a report on human rights abuse, and a call for a government apology? Perhaps it would be wiser to avoid the human rights abuses in the first place.
