The Law Commission has consulted on whether or not surrogate motherhood should be commercialised in the United Kingdom. We have responded objecting to this and also spelling out the Christian case against surrogacy. Here we explain this.

What is surrogacy?

Surrogacy is an arrangement when a woman carries a baby for another person or couple and gives birth to that baby. The surrogate may either carry the fertilised egg of the mother donating it (full or gestational surrogacy), or carry her own egg fertilised by the sperm of a man she isn’t in a relationship with.

There are several reasons why some people choose surrogacy as the path to becoming parents, rather than a more conventional alternative path such as adoption. A woman who has suffered several pregnancy losses through miscarriage or stillbirth might consider it, or a couple who have experienced repeated failures of IVF implantation. Also, a woman who has a malformation of the womb or other problems relating to the womb, including its absence, might consider surrogacy. Same-sex male couples may also choose surrogacy as this is the only way for them to have biological children.

Surrogacy in the United Kingdom

The government explains the current legal situation for surrogacy in the UK here:

  1. The surrogate mother becomes the child’s legal parent at birth: “If you use a surrogate, they will be the child’s legal parent at birth.” (Note how the government simply refers to ‘the surrogate’ using the gender-neutral pronoun ‘they’ at this point, which suggests some surrogate mothers are female-to-male transgenders.) Surrogacy is open to both heterosexual and same-sex couples. The spouse or civil partner of the surrogate mother is presumed to be the child’s second parent unless they declare otherwise.
  2. The woman and man donating the gametes, known as the intended parents, can make a surrogacy agreement with the surrogate mother in order to record how they want the surrogacy arrangement to work. This agreement is not legally enforceable. They cannot pay a surrogate mother except for providing ‘reasonable expenses’.
  3. If the intended parents donated sperm/eggs, they can apply to become the child’s legal parents by applying for a parental order or to adopt the child.
  4. If the person living with a donor also wants to be known as the parent, they must also have the child living with them, do so within six months of the child’s birth and be residing permanently in the UK.
  5. If the intended parents did not donate sperm or eggs, they can only become parents by applying to adopt the child.
  6. There is no legal duty for the (birth) mother to hand over custody of the child.

The problem with surrogacy – eroding family bonds

There is a strong Christian case against surrogacy being allowed. The starting-point consists of the truths that all human beings are created in the image of God, that as such human life is sacred and that we have a duty to protect marriage and parenthood as instituted by God.

As surrogacy involves a woman carrying an embryo produced from the eggs of another woman, it inevitably splits biological motherhood into two parts and thus sets up a conflict between two women over their relation to the child that has been conceived. The surrogate mother has bonded with the child during pregnancy, and to sever this relationship after birth can be devastating for her and the child.

By the same token, surrogacy increases the risk of an impaired relationship between the biological father of the child and the genetic mother who gave the eggs in the first place, because she has relinquished the responsibility for pregnancy to another woman with whom he has no relationship.

In the event that a doctor implants several eggs in the surrogate, surrogacy can involve the risk of selective reduction, which involves destruction of some of the embryos.

Medical problems

The Human Fertilisation and Embryology Authority looks at some of the medical issues arising here. As surrogacy relies on artificial reproductory methods including IVF, similar problems may arise with its use. For example the success of surrogacy can be related to the age of the woman donating the eggs, the quality of the man’s sperm and the surrogate’s own ability to get pregnant. The HFEA warns that there is a risk of transferring infectious diseases to the surrogate, e.g. HIV or hepatitis. A licensed UK clinic would automatically screen donated eggs and sperm for any infectious diseases.

Exploitation of women and children

In recent years more and more people have become concerned that surrogacy is exploitative of both women and children. Surrogate mothers are treated as containers for unborn children only then to be asked to step aside completely. Internationally there is concern that less economically privileged women can be vulnerable to being lured into carrying children for more well-off individuals. This is particularly the case if the women are from developing countries whilst the intended parents are from wealthy western countries.

Surrogacy in the UK is open to same-sex couples and can be used by male same-sex couples. In such cases as they obviously cannot produce eggs for fertilisation, potentially two women are being used, one for donating eggs and the other as a surrogate. It is therefore deeply ironic that a child born of such an arrangement would be brought up without either a biological or legal mother. This fundamentally goes against the child’s right to know and be brought up by his or her parents, as set out in the UN Convention on the Rights of the Child.

Some of the most difficult problems with surrogacy are the psychological effects on the children. Babies naturally become attached to their mothers in the womb. There is no obvious reason why once born, the baby’s sense of attachment would be transferred from the surrogate mother who gave birth to the intended mother who donated the eggs.

The commercialisation of surrogacy would effectively usher in a regime allowing the buying and selling of gametes, and therefore of children. What this amounts to is the human trafficking of children.

Law Commission pushing commercial surrogacy in the UK

The Law Commission’s consultation received some media attention when it was published last June, but since then there has been a concerning lack of media coverage on the issue. Whilst the Commission is technically independent of the government it is in reality very close to it. Thus there are many questions to ask as to in whose interests this change is being proposed, and who is behind it all. Sir James Munby, former President of the Family Division of the High Court has argued that consideration should be given on whether the legal ban on the commercialisation of surrogacy should end. On the constitutional level this begs the question as to whether judges should be engaged in activism to change the law on matters of public policy, given that we already elect politicians to sit as legislators.

Interestingly a survey conducted by Kent Law School in 2018 found that most surrogates in the UK support the status quo and oppose the proposed commercialisation of surrogacy. This begs the question as to in whose interest is this consultation being held.

You can see some important criticisms of the whole idea being made by Philippa Taylor from the Christian Medical Fellowship, the Anscombe Centre for Bioethics, and Nordic Model Now, which campaigns against the exploitation of women’s bodies including especially through prostitution.

Surrogacy is banned in most European countries

The temptation with ‘progressive’ causes such as making surrogacy more available is to assume that everybody else is supporting them, therefore so should we. This mentality can apply across countries. However in fact surrogacy is banned in most European countries: France, Spain, Italy, Switzerland, Germany, Denmark, Norway, Sweden, Finland, Austria, Poland, Slovakia, Estonia, Latvia, Lithuania, Hungary, Croatia, Slovenia, Romania and Bulgaria.

Within the last few weeks there have been massive protests in Paris over the proposal to pass a law to legalise surrogacy as well as IVF for single women and lesbians. In addition it is a practice that has been severely criticised even in the international institutions that are often found to be promoting progressive and individualistic policies on family life. In 2016 the Committee on Health, Social Affairs and Sustainable Development of the Council of Europe rejected a report calling for the legalization of surrogacy across all of Europe.

In light of these realities there is no case for saying that the UK must permit the commercialisation of surrogacy. We believe that there are so many serious problems with surrogacy, which we have outlined above, that the UK should follow other European countries and ban surrogacy altogether.

Author: Carys Moseley

Article courtesy of Christian Concern. Republished by permission. 

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