In June, the Law Commission published a consultation document on surrogacy, which is still open for submissions. The premise of the consultation – and indeed of the Government – is that surrogacy is a positive, family-building, option but the current law is too restrictive and needs to be ‘reformed’.
The Consultation paper could hardly be clearer with its title: ‘Building Families through Surrogacy: a new law.’ This is backed up by Government support: ‘The Government supports surrogacy as part of the range of assisted conception options.’
The Law Commission, along with other proponents for change, argues strongly that the current law is out of date and in urgent need of reform: ‘We think that there is a strong case for reform to the law. We believe that the current law is out of date, unclear and not fit for purpose.’ Or, as Sir James Mumby, former President of the Family Division puts it: ‘Our legislation is elderly by any standards. Large-scale legislative reform is essential.’
Two of the main issues that the Law Commission is looking at are payments to surrogates and who are the legal parents of the baby. For the latter, they propose that in principle the ‘intended parents’ will become the legal parents at birth, (rather than after six weeks as at present), thus transferring parental rights immediately to the ‘intended parents’, and away from the surrogate mother.
A helpful CMF blog covers some of the practical and ethical issues in more detail. I want to take a step back however and question the basic assumption that surrogacy is a positive family-building option, to be supported and encouraged.
I have some simple questions about surrogacy which the Law Commission avoids even asking, let alone answering:
Q: Is surrogacy a commercial transaction or not? (A. It is almost always a commercial transaction and there should be no pretence that it is not).
Q: Who takes care of the short- and long-term health needs of surrogate women once they have ‘produced’? (A. No-one)
Q: Who is concerned about the effects on children from being cut off from their gestational mother and from their biological heritage and identity? (A. Very few (see p19-21) See here too (p22)
Q: Who will answer the sibling pleading with his mother (see p18): ‘We don’t need the money; can we just keep my brother?’‘ (A. Who can answer this?)
Q: Who are parents nowadays? The biological? The social? The gestational? (A. All of them, including this surrogate mother, eight years after giving birth)
Q: Why do no wealthy women become surrogate mothers? (A. They don’t want to!)
Q: Who has done the research showing that surrogates are not impacted physically and psychologically in the long-term? (A. Very few, and on very few women. There are personal stories though.)
Q: Why do wealthy Westerners go abroad for surrogates? (A. To pay less, avoid restrictions and exercise more control.
Q: Why do Indian women really become surrogates, in a country where it is highly stigmatised? (A. For the money, rarely for altruism or to make other lives ‘whole’)
Q: Why are surrogate mothers so often called ‘gestational carriers?’ (A. It conveniently de-personalises mothers and what they are doing)
Q: Who really cares about the mothers and children? (A. A few people, but not enough. Anyone with the illusion that mothers are not impacted by carrying a child for ‘just’ 9 months should read this letter by a surrogate, or this report on international surrogacy)
Q: What and who is really driving the global industry of surrogacy? (A.MONEY, same-sex couples and some heterosexual couples – and not necessarily infertility)
In reality, surrogacy is an exploitative global industry, driven by money and the demands of commissioning ‘parents’. It requires women to become ‘breeders’ and it treats children as commodities. Indeed, I would go so far as to say that in many cases, commercial surrogacy is not too far off buying and selling children.
To read more on the biblical and ethical perspectives surrounding the use of surrogacy, have a look at this CMF briefing paper.
This warning by CS Lewis back in 1943 was highly prescient: ‘What we call man’s power over nature turns out to be a power exercised by some men over other men with nature as its instrument…’
Lewis was right, because the truth is, with surrogacy, one woman’s (or man’s) gain is almost always another one’s loss.