I first thought about surrogacy when a friend was having issues conceiving. It made me think about the hypothetical: If I could carry a baby for someone I loved dearly, would I do it? I did not need to think long; I knew I personally could never hand over a baby I had given birth to.
Surrogacy is fraught with moral complexity. On the one hand, there are joyous parents who never thought they would be able to have their own biological children and women who say they find being a surrogate fulfilling. On the other, heartbreaking stories of what happens when it goes wrong, tales of terrible exploitation of women in poor countries, and — recently — babies left stranded with no parents in countries such as Russia and Ukraine during COVID-19, then war.
The UK is one of relatively few countries where surrogacy is lawful. However, it is permitted, not encouraged. Commercial surrogacy is banned; women who are surrogates should be compensated only for reasonable expenses. Surrogacy is dealt with after the fact in law: A woman is always the legal mother of a child she gives birth to; the intended parents must apply to the family courts for a parenting order after the child is born. It remains small scale, with just 300 to 400 orders granted a year.
There are women who have positive experiences: Sarah Jones, a five-time surrogate and head of surrogacy at Surrogacy UK, told me it “is literally changing someone’s life.” She has no regrets, even though she ended up in hospital with gestational diabetes for five weeks during COVID-19 in her last pregnancy, and has close relationships with the families she has carried babies for.
However, one happy story, or even several, does not eliminate the potential for exploitation inherent in carrying a baby for other people. I also spoke to a woman who had had a terrible experience; made to feel like an object throughout, she was not allowed to see the baby in hospital after giving birth and was blocked by the parents on social media a few days later. It left her traumatized. There is very little independent contemporary research on the mental health impact of surrogacy, so no one knows how widespread these experiences are in the UK.
However, we do know that surrogacy comes with health risks — all the usual risks of being pregnant, which increase with age. Carrying an embryo made using someone else’s egg also comes with significantly higher risks, as does being implanted with multiple embryos, which some clinics do to increase the chance of a successful birth. “Expenses” payments can be high and unitemized — sometimes more than ￡20,000 (US$22,000) — meaning it is perfectly possible that some women decide to become surrogates, or are pressured into doing it, for financial reasons.
While surrogacy is banned across most of Europe, some countries have embraced a fully commercial model. India had a booming industry that attracted people from all over the world. Investigations revealed how some poor women acting as surrogates were housed in terrible conditions in communal accommodation, prevented from seeing their own children and not allowed to meet the families the babies were going to. Surrogacy has been banned in India altogether, with Georgia emerging as an alternative cheap destination. There are stories of parents rejecting babies born with disabilities, while sex selection of embryos is legal in some places.
It is not just less-affluent countries; across much of the US, women can get paid US$30,000 to US$60,000 per pregnancy, with health insurance included. The feminist campaigner Julie Bindel told me of the surrogates she interviewed in California: “Many of the women I met lived on trailer parks and were desperate to make money.”
Surrogacy is contractualized; women are obliged to hand over the baby and a woman who has an abortion without the consent of the intended parents could be sued, eroding her bodily autonomy. This is regarded as sale of children by the UN special rapporteur on the exploitation of children.
About half of parental orders in the UK are granted to British parents who have pursued surrogacy abroad; the family courts are rightly obliged to do whatever is in the best interests of the child, so even the most exploitative arrangements are difficult to disincentivize.
The Law Commission seems to be steaming ahead on the assumption the law should become more permissive
Surrogacy also raises questions about the importance of gestation to parenthood. The Law Commission is reviewing the UK’s surrogacy framework and has proposed a pre-conception pathway that enables people to become the legal parents at birth as long as the woman who has carried the baby does not object and everyone involved has counseling.
This would make a big difference to parents: I spoke to one gay dad for whom surrogacy has been life-changing, but who had to wait months because of a backlog in the courts.
However, it also shows the extent to which the Law Commission is treating surrogacy as much as possible as just another form of assisted conception. The only third-party checks on intended parents would be criminal.
However, surrogacy makes it possible for single men to become parents with no one else involved. Given that the vast majority of violence, including domestic and child abuse, is perpetrated by men, much of it never criminally prosecuted, should not anyone wanting surrogacy have to go through more extensive checks so that it is flagged if they are known to the police, the family courts or social services for domestic or child abuse?
The commission has also proposed that in some circumstances the requirement for a genetic link with a baby born through surrogacy could be dropped, leaving open the question of whether there should be more commercial-style payments to women who carry babies.
Surrogacy raises fraught ethical questions about how we reproduce. I do not believe the law should be encouraging surrogacy; others may disagree. But despite the lack of public attitudinal data, the commission seems to be steaming ahead on the assumption that the law should become more permissive. In doing so, it has appointed itself sole moral arbiter of a question that is for all of us as a society.
Sonia Sodha is an Observer columnist.
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