Surrogacy is often portrayed as a compassionate and beautiful act, a selfless gift, where a woman carries a child for a couple or an individual who are unable to have their own children. On the surface it appears to be a great act of kindness. However, beyond the superficial, there are troubling aspects of surrogacy arrangements that should not be skimmed over.
The law around surrogacy in the UK is currently under review. This review is being carried out by The Law Commission of England and Wales, together with the Scottish Law Commission, and a consultation paper is expected to be released by Spring 2019.
It is interesting to see how perceptions of surrogacy have changed over the last 40 years. Described as ‘irresponsible, bizarre and unnatural’ by a judge at the Court of Appeal in 1978, now it is recognised as one of many viable options for starting a family. This is reflected by an increase in the number of parental orders issued after surrogacy arrangements – 194 parental orders in 2012, rising to 368 in 2016.
Why do people opt for surrogacy?
Some women have medical conditions that render them unable to carry a child. There are a growing number of LGBT+ couples seeking to have children. There are single people who long to fulfil their dream of becoming a parent. There is also the worrying trend of ‘social surrogacy’ in America. Even going as far back as the Old Testament, we read of Sarai trying to build a family through her maidservant Hagar, and of Rachel using her maidservant Bilhah to bear children for her.
Who benefits from surrogacy? Whose interests are we acting in? Is it the child’s, or the parents’?
When a couple or an individual commission a surrogate to carry a child for them, are they not trying to fulfil their own desire to be a parent? It cannot be denied that there are many people in the UK who desperately long to have their own child, who experience sorrow and heartbreak because they are unable to achieve this. This grief should not be ignored or coldly cast aside. Yet in our society, the principles of autonomy, personal choice and individual rights are almost sacrosanct. If medicine and new technologies can enable a couple or individual to have a child, why shouldn’t this be allowed at any cost? These questions are not easy to answer.
Legislation regarding surrogacy arrangements in the UK is based on the ‘Surrogacy Arrangements Act 1985’. Despite being updated by the Human Fertilisation and Embryology Acts of 1990 and 2002, legislation has been branded as ‘not fit for purpose’ and ‘restrictive’. The Law Commission has highlighted three areas of law it wants to review: the issue of legal parentage when the child is born, international surrogacy, and the regulation of surrogacy arrangements (ie. the question of payment for surrogates).
However I believe that we should be wary of modernising the law or of abandoning the safeguards that are currently in place.
At present, ‘altruistic’ surrogacy arrangements are legal in the UK. In these cases, only expenses ‘reasonably incurred’ are remunerated, with the precise amount case-dependent. The Department of Health explicitly states that ‘Money should not be a motivation for surrogacy’. In ‘commercial’ surrogacy arrangements the surrogate is paid for the ‘service’ she provides (carrying and delivering the child). Commercial surrogacy, along with any form of surrogacy advertising, is illegal in the UK. And yet even in the so-called altruistic surrogacy agreements, vast amounts of money can often change hands – typically, a surrogate in the UK will be paid £8,000 – £20,000. Regulation differs in other parts of the world, with commercial surrogacy being legal in several countries including Ukraine, Georgia and parts of the USA.
There is a worrying drive to commercialise surrogacy arrangements in the UK. Why is this concerning?
First, commercial surrogacy opens the door to manipulation and abuse of women. Surrogacy has been described as ’a form of exploitation of women and children as it reduces the woman to a reproductive machine and the child to an asset in a business transaction.’ A surrogacy arrangement is a contract between ‘commissioner’ and ‘service provider’. Typically, the commissioner is a wealthy couple or individual who desires a child and has the means to pay for one – to ‘rent a womb’ (this phrase captures the concern well, as well as being starkly accurate). The ‘service provider’, often poor, is attracted by the promise of financial reward. Traditionally, India was a popular destination for ‘fertility tourism’. However, in December 2018 India passed ‘The Surrogacy Bill’, which forbids commercial surrogacy and forbids any foreign nationals from using an Indian woman as a surrogate. It is striking that a country which has experienced first-hand the devastating effects of commercial surrogacy has taken such radical steps to end it, in order to protect impoverished and vulnerable women from exploitation. The terms ‘service provider’ and ‘gestational carrier’ reflect the way that women (mothers) are reduced to consumer products.
Second, the review will look at making surrogacy arrangements legally binding contracts. This will mean that the ‘commissioning parents’ would become legal parents at birth. At the moment surrogacy arrangements are not based on a legally binding contract, so that the legal parents at birth are the surrogate mother and, if she has one, her partner. The surrogate (birth) mother is not obliged to give up her child; under current legislation her rights are protected. Instead, a ‘parental order’ is used to transfer the status of parenthood from surrogate to commissioning parents six weeks after the birth. As of January 2019, single people are also eligible to apply for a parental order.
Astonishingly, it is now possible for a newborn baby to have six individuals each with a claim to parenthood. First there is the surrogate mother and her partner. Second, there is the ‘commissioning couple’. Finally, there may be an unrelated egg and/or sperm donor. Who has the most legitimate claim? Why shouldn’t the commissioning parents be the legal parents from the moment of birth?
Advocates say this would protect the commissioning parents in case the surrogate mother changes her mind and wants to keep the baby. However, the woman who has carried the baby through the nine months of pregnancy has intimately known and bonded with the baby in a way that no one else could. In separating herself from the child at birth, she is forced to repress her emotions and the maternal instinct to love, cherish and nurture the child. Could it not be said that to force this mother (even if in legal terms she is only a ‘gestational carrier’) to give up this child is unashamedly exploitative?
Third, the needs of the child must be considered.
We are told in Proverbs 31:8-9 to “Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy”. Surely the newborn child comes under the category of one who cannot speak for themselves, as one of the vulnerable members of society. We are called to defend such a person, to stand up for his or her rights. Surely the most fundamental right of the child is to be with the person who is generally most able to satisfy his or her needs ie. the mother.
This CMF file is a helpful resource for thinking through biblical principles in more detail. God has given us the ability to develop all kinds of technological innovations, and it is good to use these to achieve his redemptive purposes in the world. Yet just because we can produce a child in this way, does that make it morally right to do so?
Every child born from a surrogacy arrangement (or indeed using any form of reproductive technology) is uniquely designed by God and valuable to him. We are told in Genesis 1:26-27:
“Then God said, “Let us make mankind in our image, in our likeness…” So God created mankind in his own image, in the image of God he created them; male and female he created them.”
Every child, whatever the circumstances of their birth, has a status and dignity that cannot be removed. Yet in surrogacy arrangements, which are driven by money, it seems that children are no longer viewed as God’s image-bearers, but as commodities which can be purchased – bought for a price.
Throughout the ages, childlessness and the inability to conceive has been a devastating reality for many, leading to anguish and grief and many tears. In an age of self-fulfilment where anything seems possible, it seems harsh to say that seemingly restrictive safeguards may just be what our society needs.
Without doubt, great wisdom and compassion are needed.
Kelly Hibbert is a junior doctor