The Times confirmed today that this government will not proceed with law reform of the 1985 Surrogacy Act, as is proposed. We are thrilled to hear this news!
Reform proposals were first jointly shared in the 2019 public consultation from the Law Commission of England and Wales, and the Scottish Law Commission. It is why this campaign formed as we stand against surrogacy because of the harm it brings to women and children.
The legal model for surrogacy in the UK is meant to be based on ‘altruistic’ surrogacy only, but ‘reasonable expenses’ are paid like a monthly salary and the total fee averages between £16,000-20,000. These are numbers from the surrogacy agencies themselves. UK agency, Brilliant Beginnings states “In the UK, which is often described as having an ‘altruistic’ surrogacy framework, surrogates typically receive £12,000 to £35,000as expenses (which is less than in the USA, where surrogacy is commercialised and surrogates typically receive compensation of $40,000 to $90,000).”
The number of people commissioning a child in England and Wales has quadrupled. A study from Dr Kirsty Horsey, Law Professor at Loughborough University (previously a Senior research Associate at London Women’s Clinic) and My Surrogacy Journey shows that Parental Orders – where a mother transfers her parental rights to the commissioning parents or parent – rose from 117 in 2011 to 413 in 2020.
Now, approximately 500 applications for parental order go through the courts each year, and roughly half of these PO applications are for babies born abroad.
Commissioning couples or individuals living in the UK are allowed to undertake commercial surrogacy arrangements abroad and bring a child back to this country, despite commercial surrogacy being illegal here. UK Adoption laws prevent international adoption from countries due to safeguarding and exploitation risks, such as Nigeria, Cambodia, Guatemala, Nepal, Haiti, and Ethiopia – but there is no such list for surrogacy. Minimal safeguards are applied and we are aware of several examples where a convicted child sex offender obtains a child through a commercial surrogacy arrangement abroad and others who planned to obtain a child through surrogacy for the purposes of abuse.
Whilst the Law Commissions jointly acknowledge that international surrogacy “can bring a greater risk of exploitation of women and children” there were no proposed changes to the ‘old pathway’ which would continue to allow babies to be removed from their mothers abroad and brought into this country. It is worth remembering that children who are conceived and carried this way will likely never see their mothers again.
In fact, there is a section in reform that argues or Parental Orders to remain and operate alongside the ‘new pathway’ as “some surrogacy teams may still choose to make agreements outside of the new pathway. Closing off the parental order process to them would mean that a decision by the court about the legal parental status …would be unavailable.”
As a reminder, the ‘new pathway’ under reform would see:
The introduction of pre birth orders – so commissioning parents would secure parental rights a birth, as practiced in countries that apply the commercial model.
Lower age limits of 18 years for commissioning parents and just 21 years old for surrogate mothers – there were no proposed limits for the upper age for either of the adult parties and there were no limits for the number of pregnancies a woman could have for others.
There is no requirement for a woman to have previously given birth or completed her own family before embarking on a pregnancy for others and proposals would to continue to use surrogate mothers to have a baby for others, conceiving with her own egg – meaning at the point of handover the child is removed from their genetic mother who is also their birth mother.
(For more on what the proposals mean, read this blog or watch the video.)
Finally, we would like to thank everyone who sent a letter to their MP using the template from Surrogacy Concern, we truly appreciate your support. Every single email sent, every conversation, every tweet or post counts. We could not do this without your support.
Surrogacy is an inherently risky and exploitative practice which needs to end.
Last month several cases in the high court came to light and we explore them here as each presents different areas of concern with international surrogacy – faceless mothers, simultaneous surrogacy and human trafficking.
Invisible Woman – a surrogate mother is faceless and nameless
A UK couple, with connections to Nigeria went there to obtain a baby. The baby was conceived with the egg of the surrogate mother and the sperm of the commissioning father but the couple never met the woman who they impregnated. Arrangements were made between their chosen clinic and agency and she remained anonymous throughout the process as this was their preference. Her face was covered during scans and appointments which were conducted remotely and only her initials were recorded in the paperwork.
When the baby was brought into the UK and a parental order was process though the court the commissioning couple’s intentions were laid bare.
“At that point we are satisfied that opting for an anonymous surrogacy will be our best option since we will not meet the surrogate mother and she will not know us. We thought this will remove all the problems people face when they do surrogacy and the stigma that surrounds it. We want safety, protection, security, and peace of mind. We didn’t want unnecessary involvement and attachment; we just want to sign the contract without owing anybody obligation. We understand someone to do this is really giving us something special we don’t want to carry this for the rest of our lives identifying the person will make us think we owe them gratitude for the rest of our life.”
This couple deliberately sought out a woman in Nigeria so they would not be required to build or maintain an ongoing relationship with the mother of their child. The burden of gratitude was too much for them and they do not know her name or what she looks like and neither will her child. The baby girl will also not know her maternal family or any other siblings she may have.
Every day we see, in private chats and on public groups, agents and brokers in Nigeria seeking women to donate their eggs and to rent their wombs. We consistently see posts from women who are clearly desperate for money and this makes them vulnerable to exploitation. Nigeria remains on the list of countries where you cannot adopt from if based in the UK, the basis for this is the risk and concerns over exploitation but this does not apply to surrogacy.
Consent was dispensed with. The full judgment is here.
Two for one – not the first case of simultaneous surrogacy for a UK couple
A UK same sex couple in their 60s and 70s paid £120,000 for two babies born to two different Ukrainian women in Northern Cyprus, though they believed the clinic to operate out of Southern Cyprus. The children were conceived from from the same woman’s eggs and the same man’s sperm so were related to each other but were not related to either of the two women, so the Parental Order was denied. Consent from the Ukrainian mothers was dispensed with. The judge for this case, Sir Andrew McFarlane, president of the family division of the High Court said:
The adoption of these children took 4 years and in the ruling the judge noted the women were “exploited for commercial gain’.
Consent was dispensed with. The full judgment is here.
Global baby – multiple international locations
This case involved a single man who paid a surrogacy agency in Israel and a fertility clinic in Northern Cyprus to implant an embryos into the womb of a surrogate mother who came from Kyrgyzstan. The mother travelled to Northern Cyprus for an embryo transfer, before returning home and later gave birth in Moldova.
The man paid Fullsuccess Medical Consulting almost £26,000 and he told the court that he believed the surrogate mother was paid £12,250. In the granting of the Parental Order, Mrs Justice Theis DBE said “what took place in this surrogacy arrangement, with the seemingly reckless disregard of the cross-jurisdiction implications of the arrangement,overseen by two essentially commercial organisations, causes the court enormous concern”.
The UK surrogacy model is meant to be altruistic and based on ‘friendship first’ but Parental Orders for international surrogacy arrangements continue to be granted by the UK courts and they appear to be on the rise.
A 2022 study shows how UK residents prefer the commercial mode as it secures parental rights and control over the surrogate mother (see our analysis) . Women are being exploited for their reproductive capability and there are no friendships being formed prior to pregancy and no ongoing relationships once the child is born. There is no basis for the child to know where they come from, they may not even be told they are born from an arranged pregnancy. Courts can dispense with ‘free, fully informed and unconditional consent’ and the mother simply disappears, returning to her home country in a puff of smoke.
These are far from the only recent cases, this month two teachers from London obtained twins from a Kazakhstani woman who gave birth in Northern Cyprus, this has resulted (at the time of writing) in an ongoing police investigation.
The Law Commission of England and Wales and the Scottish Law Commission argue that the Parental Order system that transfers parental rights should continue and work alongside the ‘new pathway’, under their reform proposals. This would continue to allow arrangements like the ones we share here, to continue.
If you have concerns over the proposals, you can write to your MP using the government website. If you need any support with this, please email us on stopsurrogacynowuk@gmail.com.
In recent years the trend of celebrities buying babies has grown exponentially. We now regularly hear stories of well-known figures becoming parents ‘through surrogacy’ and see announcements on social media of their newborn’s arrival, usually accompanied with a stylized photo of the babies’ feet. Headlines like “Celebrity becomes parent” is commonplace with Paris Hilton, Amber Heard, Cameron Diaz, Rebel Wilson, adding to the trending list on Twitter. The birth mother rarely gets a mention and perhaps this is to protect her identity, but we are told by these same news stories what a wonderful thing it is to be a ‘surrogate’ so why not fully celebrate the wonderful, altruistic act a surrogate mother has done for someone less fortunate?
Most of these articles normalise surrogacy, presenting as it no different from buying a mansion or signing a business contract. We may see claims of ‘fertility issues’ as a reason to justify the practice of commercial surrogacy or – as with Priyanka Chopra and Nick Jonas – a ‘busy schedule’ is to blame for the lack of natural conception. How that same busy schedule allows time for raising a child is best left to our imaginations.
There is no room to bring ethical issues to the forefront, the glossy magazines will tell us it was the surrogate mother’s choice, so it is justified. Under the auspices of body autonomy and ‘choice feminism’ we must respect that a woman selling her child for money is to be respected and never questioned. ‘Her Body Her Choice’, a slogan once used to fight for legal abortion and further access to safe terminations has been rebranded, but this time disingenuously. If we were more honest it would be Her Body My Choice.
Choice Feminism
When a woman engages in surrogacy, we may hear talk about “free choice”, it is something a woman chooses to do. Ok, but when most surrogate mothers engage with surrogacy due to financial need, must we accept this without question? Did we ever see a celebrity renting her womb to “help” other women fulfil their desire to become mothers?
No financial need is a free choice; it is a necessity, survival. When there is a need, there is no room for free choice. There may be 100 different types of cereal on the shelves, but you can only afford the cheapest one for your children. Is that choice? If you rely upon benefits or welfare, can you use that money to buy a designer handbag if that is what you choose? We can only make free choices after our basic needs are covered. Most women engaging as surrogate mothers do not have their basic needs covered; they usually have children, a family to support – can any of these news articles tell us how a wealthy, famous woman has rented their womb out to “help” another women less fertile than herself become mother?
Celebrity Culture
This has long been held up as aspirational, for their wealth, popularity, appearance and glamourous lifestyles. Teenagers may become infatuated with a particular singer, looking to emulate them or heartbroken when their favourite band splits up. Those who once influenced fashion trends now flood the market with their own brands, from clothing and make-up brands to a shape underwear, all with a ‘name’ on them. When a Birkin bag is seen on the arm of a Oscar Winning actress, coffee cup in her other hand, the item will not only fly off the shelves but there will be a long waiting list for the next batch of bags to be delivered. The counterfeit markets are booming from cheap fakes just so those on a medium income can mimic a celebrity and, as it is with surrogacy, is not the factory workers making the big bucks.
When the of surrogacy cost is reduced and access made possible we can all have what a wealthy celebrity has, a fake designer bag can be very convincing. Kim Kardashian once paid more for a handbag than she did for a surrogate-born child. (The average cost of a surrogacy pregnancy is $90,000, depending on the US State, it is far cheaper in Ukraine, Mexico, Columbia, etc where poor women can be exploited for their eggs and womb rental.) But contrary to jokes from an Oscar Wilde play or BBC Correspondent’s tweet, babies are not handbags and not should they be carried around in one.
The comments sections of news article on this topic may see people promoting the idea that everyone as a “right to be parents”, though no human rights law even mildly suggest this. Others argue that “adoption” is not easy for gay couples in some countries, so surrogate mothers should be provided for them to realise their dreams of a biological family. This is done in place of fighting for better adoption conditions.
Infertilityand Social or Situational ‘Infertility’
Fertility issues and advancing years mean it is difficult for many women to conceive and deliver a healthy baby, but neither are a reason to use women as a ‘proxy’ to deputise and carry the risks of pregnancy and labour to produce a child. Human beings have health problems, something inherent to the human condition. Some maybe lose their vision, a leg, an arm, teeth, or feet. Are these people entitled to a new human part to supplant their health problems? Many will agree that it is not reasonable and that organ trafficking is horrific. Nevertheless, when it comes to renting a womb it is a solution to ‘infertility’. Why did that speech change? Why is buying a healthy liver from a poor, vulnerable person abhorrent, but renting a woman’s womb and paying for a newborn is acceptable? Could it be that society normalized using women as commodities and that renting one is just not that bad?
Homosexual celebs couples with ‘situational infertility’ are well-known for renting wombs to fulfil their desire to make a family, and in cases like Nacho Palau and Miguel Bosse, who, after breaking up, separated their children, taking each one their biological boys according to the paternity. This decision left no room for sibling bonding between the four boys. In other cases, like Jeff Lewis and Gage Edwards, who’s acrimonious split after the birth of their surrogate-born daughter, now co-parent and arguments over remaining frozen embryos were tame in comparison to the law-suit from the birth mother of Monroe. Ricky Martin and his partner, Jwan Yosef, received backlash when these two men said they were “pregnant”…how many women were involved to produce their family of four? Though surrogacy scandals are not limited to homosexual couples. Actress Jamie Chung has the ‘social’ type of ‘infertility’ and claimed pregnancy would hurt her career so she outsourced it. Zheung Shaung hoped to cancel the baby order she placed with two women when she split from her boyfriend. The babies she had commissioned became inconvenient and she wanted these women, each seven months pregnant at the time, to get abortions.
Parenthood as a Human Right
From ‘fertility privilege’ of heterosexual couples and women without fertility struggles, to the claims of gay equality rights to IVF, there is a move towards a ‘right to parenthood‘. In country law and human rights in general, there is no right to become a father or a mother, it falls in the wish or dream category. To be a mother or father is a hope, a desire, not a human right.
Commodities, not humans
The discussion about surrogacy ignores a vital element—the children. Nobody addresses what biological, psychological, or developmental consequences impact these luxury babies. There is not enough research and no interest in figuring it out. However, specific facts prove that children are not the priority since, in many cases,” like in many cases in Ukraine and Thailand. In these cases, the law and contract policies with the agencies did not consider the fundamental right of the children to be protected as human beings but instead treated them as mere ‘things’. No parent in any country is entitled or has the right to abandon their children if they are born with a disability since this is a crime but babies bought as a ‘faulty product’ are rejected and abandoned for not being perfect.
As adults, knowing they were the product of surrogacy may be a traumatic discovery. Jessica Kern, a ‘product’ of commercial surrogacy asks why her mother gave her away but kept other children, she too asks why her commissioning and legal parents bought her and of decision makers, why this is permitted. Is Jessica the only surrogate-born child, who in her adulthood is asking this question? No.
Children in the surrogacy trade are not considered human beings but commodities, a social media tool, and now this celebrity ‘luxury item’ is available to the general public via the law-makers affording access and with the media usefully promoting it. There are more and more justifications for surrogacy in the media, but only a few truly explore even the most basic questions. The fact that it is already allowed demonstrates the direction we are going in. A society where money and power can buy anything, where a adult wish, realised through cold hard cash, has more weight than the rights of babies. Children are now the new Birkin. Through the popularisation of this questionable practice facilitates the increase the trade of children and the exploitation of women.
Normalising the buying and selling of babies and women as a tool to solve ‘infertility’ is not acceptable.
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.
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.”
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.
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.
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.
There has been an interesting response to the Royal College of Midwives (RCM) webinar on Surrogacy. Perhaps it’s not surprising that those ‘with women’ wanted to offload their or share what they themselves have witnessed when supporting patients through pregnancy, birth ‘and beyond’.
Midwives got in touch with us to tell us of their shock at when they heard their union was considering hosting a webinar on surrogacy. We later heard from the women who attended that it was far from a the ‘neutral’ presentation they were promised.
Parts One and Two of this short blog series are direct accounts from RCM Members who attended and who remain anonymous and other midwives gave us permission to share their personal perceptions of surrogacy in their day-to-day jobs.
A Community Midwife noticed how the glossy images a surrogate mother posted online which promoted surrogacy as a wholly positive experience hid the very raw and real realities of her birth injuries.
Another midwife said something similar about a woman who had a baby for a family member. The commissioning mother was posting on social media about how amazing her ‘journey’ was, but this midwife knew the reality for the birth mother. It was filled with gestational diabetes (which can lead to higher risk of diabetes in future), obstetric cholestasis which is a liver condition (that can causes liver disease and other issues in the future) and high blood pressure. This risky pregnancy ended in a C section. The truth was this woman was devastated after the birth as she would never have another child of her own due to these complications. It put a strain on her own marriage as her husband, while initially supportive, didn’t realise the enormous negative affect this had on his wife’s health and the future of their own family. This desperately sad reality was not shared on social media.
Another midwife commented on the late maternal age of two surrogate mothers she cared for and she expressed concern that there are no upper age limits in proposed reform. Both of the surrogate mothers she supported were in their 50s. She felt that as the pool of women available for surrogacy was ‘slim pickings’, women with a complex obstetric histories may be considered by the commissioning parents as their options were limited. This was nothing to say of the risk to the baby.
And finally there was one patient that stayed in the mind of a midwife we spoke to by phone. She told us how she supported this woman through four surrogacy pregnancies. The midwife knew she had lost touch with all but one of the families she was pregnant and gave birth for. During these pregnancies the commissioning parents were her “best friends” but once the baby had been delivered, the surrogate mother was “ghosted” and she then grieved the loss of the lifelong friendship she was told she could rely on.
In sharing their experiences these midwives has a sense of release, as if they had to keep to the official line outwardly, but inwardly there was worry and anger building as they were unable to talk freely. In our conversations these women were able to air their concerns about the direction of travel of surrogacy in the UK. Several felt badly let down by their union as women and as midwives.
We were left with a distinct observation that midwives are on the ‘front line’ of surrogacy. Any legal disputes may end up in the court room but they begin on a maternity ward. It is the midwives and other healthcare professionals who will have to navigate the practicalities on the ground around consent, the removal of the newborn and ongoing mental and physical health problems as a result of surrogacy births.
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?
Following the Royal College of Midwives webinar on Surrogacy last week, a Midwife got in touch with us to share her experience and her concerns about what the promotion of surrogacy in midwifery means for her. To protect her identity we share the following without sharing her name.
As an RCM member for the past 28 years, I’ve always felt my union has had my best interests at heart. I’ve felt confident of their support and on the very few occasions I’ve needed their assistance, they haven’t let me down. But now I feel things may be starting to change, and I’m deeply concerned.
I attended their webinar last week which was advertised online as a discussion on surrogacy and how we, as midwives can support parents of babies born of surrogate mothers. The subject of surrogacy troubles me but the content shocked me.
Since I was a teenager at the start of my training, it is embedded into the heart of what it is to be a Midwife and that is to be ‘with mother’. Our role is to be her closest carer and her biggest advocate – yet here we were being told in this new way, she is not a mother, but a ‘carrier of a baby’. A baby who is to be given away at birth, and not only that, our care as midwives should be transferred over to these ‘intended parents’.
It was very clear as soon as the webinar started that this was not a discussion or a debate on surrogacy, but well thought-out propaganda on the wonders of surrogacy, with stories from a surrogate mother and two parents of children born through surrogacy.
There are no official stats on how many children are born through surrogacy in the UK. There is no disclosure on prospective parents and we know just by reading the news, that people from the UK are traveling abroad to buy babies. Although women in the UK are not paid for their ‘reproductive service’ there are incentives and ‘independant journeys’ (private arrangements) are being made online. If you’re lucky you get an Apple Watch and Ann Summers vouchers among other goodies from an agency. When someone in the chat questioned the ethics of this, they were told by the owners (two men) that it’s nice for the surrogate to have the Ann Summers vouchers to spice things up with her partner as she can’t have penetrative sex when pregnant. Oh how we laughed, does anyone want to tell them? Questions that criticised this controversial practice largely went unanswered.
The surrogate mother and CEO of another agency, Surrogacy UK, told her story of carrying 5 babies for other people, some her own eggs, some not and once during COVID. She was asked if she was concerned for her own health and well-being due to the risks of the amount of IVF pregnancies she’d put her body through. She said she made fully informed decisions by speaking to her obstetrician and was aware of the risks and happy to take them. It’s worth noting that the long term implications cannot be known but that multiple cycles of IVF have been shown to increase the risk of ovarian and uterine cancers. Not to mention the risk of vaginal/rectal/cervical prolapse in later years following so many pregnancies. Along with her other children this woman had a total of 8 pregnancies and births including 2 c sections.
The two men who were advocates for surrogacy having had two children by arranged births and egg donation and they have their own agency and have recently expanded into Mexico City. Promoting surrogacy and offering the incentives discussed, they talked about the horrendous experience they had of the surrogate being called the mother by a Midwife and that their name could not appear on the ID band of the baby in hospital. It’s worth noting that unless a couple have the same surname, the baby will always have the mother’s name on the ID band. This is not to offend or irritate but for the basic security and safeguarding of the baby in case of a mix up or kidnapping. They were quite proud to announce that the health board crumbled at their request and they got to put their names on the ID band. Who cares about safeguarding for babies anyway eh?
My biggest concern is the long term implications for the birth mother and the baby. A baby who has known nothing but their mother’s heartbeat, her voice, her body for 40 weeks, only to be taken away and placed with strangers. And for the mother, who needs her child close to her for both their wellbeing, to regulate temperature and heart rate, to stimulate feeding instincts, to contract the womb, minimise bleeding and to release oxytocin to reduce the risk of postnatal depression and complications.
I know there are instances where this is unavoidable, but we shouldn’t as midwives, be promoting this as the norm. I don’t provide postnatal care to adoptive parents or to foster parents, so why am I being asked to treat these ‘intended parents’ as if they are the ones who have given birth? That is not my role as a midwife.These people are not my patients.
I am heartened by the fact that the student midwives I’ve spoken to feel that surrogacy is a problem in modern society. This seems to be due to the boom in celebrity surrogacy where it is clear the rich and famous are exploiting poor and vulnerable women, using them as a ‘vessel’ to carry a baby to avoid putting their own bodies through the trauma of childbirth. And the grotesque fad of lying on a hospital bed, as through they have just given birth themselves, is doing nothing to convince our new recruits that this transaction is anything other than a horrendous experience for the mother who has just given birth, and for the baby who has been removed from his or her mother literally seconds after being born. Sickeningly, there are numerous photos of babies still attached to the umbilical cord with the placenta still inside the womb, as the smiling commissioning parents hold this newly delivered baby that is crying out for their mother.
I have been taught a research-based approach throughout my career and to apply critical thinking whenever there is discussion or debate. Yet there was no other side to this webinar and the questions examining the other side were ignored. No known long term implications to the child born of surrogacy were discussed, no evidence of a long term follow up for women who have given their bodies and their babies to others. And no matter if surrogacy is commercial or altruistic, arranged on facebook or through an agency, if the mother uses her own egg or if the embryo has been conceived with a donor’s eggs, the social and moral outcome is the same.
A baby has been taken from his or her mother at birth.
