Adopting confusion

Surrogacy, 'gender', and the misleading sanitisation of adoption

Human bodies, particularly the bodies of women and children, are the latest natural resource to be exploited by capitalism. Advances in medical technology, like IVF (In vitro fertilisation), are used to open up new market opportunities such as gestational surrogacy, which harvests the eggs of women and the sperm of men to create embryos in labs which are then implanted into the wombs of unrelated women. Drugs such as Lupron, used to treat prostate cancer and the symptoms of precocious puberty, are also used to block puberty. Lupron has become an important weapon in the gender industry’s strategy of promoting an imagined (and indefinable) ’gender identity’. This creates a market for interventions to modify body parts so they resemble those of the opposite sex. Surrogacy and ‘gender’ medicine come together in yet another profit opportunity, transurrogacy. This joint venture of Big Pharma and Big Fertility enables people who have been rendered infertile by puberty blockers and cross-sex hormones to freeze their gametes. These gametes can later be used to create embryos that can be implanted into women’s bodies to provide them with children who incorporate their genes

Normalisation of surrogacy requires us to change how we define motherhood, and to devalue the woman who develops an embryo in her womb and gives birth to new life. Normalisation of gender identity requires us to change how we define woman and man, and to accept the violation of sex boundaries that this encourages. In each case, laws have to be changed to give weight to the normalisation. And each normalisation draws on the supposed experience of earlier laws governing adoption. This experience is quoted as if it provides reassurance that everything will turn out well. But the image of adoption that is referenced is a sanitised one, far removed from the reality.

What is a mother?

Domestic surrogacy is banned in many European countries, but not in the UK. Here, it is supposed to be ‘altruistic’, falling short of the full commercialisation that exists in the USA. Yet agencies are allowed to pay generous expenses to women who agree to bear a child for commissioning parents, provided she hands him or her to them as soon as she or he is born.

Surrogacy agencies are lobbying hard for the regulations governing surrogacy in the UK to be relaxed. They are particularly concerned to completely sideline the surrogate mother, who under current law is able, after she has given birth, to change her mind about giving up her child. The agencies have persuaded the Law Commissioners that UK law needs to be changed so that it’s the commissioning parent or parents, not the surrogate mother, who become the legal parent or parents at birth and are named as such on the child’s birth certificate. This follows a principle established in the 1949 Adoption of Children Act, that falsification of birth records will reassure would be parents that they can prevent any contact with the actual mother who has given birth. It also allows the would be parents, if they so choose, to lie to their children about their origins, though this is no longer encouraged.

The surrogacy agencies have drawn on adoption policy in determining how to break the mother/child bond, but they have not learnt from adoption experience about how harmful that fractured bond is, for both mother and child. Angela, my late wife, campaigned in the 1970s for adopted adults to be allowed to see their original birth records, and for the stigma of unmarried motherhood to be removed. Jigsaw, the organisation she founded, brought together mothers and adult adoptees, and its meetings allowed adoptees to learn what it was like for an unmarried mother to be forced to give up her child, and they allowed mothers to learn what children they had to give up felt for them. Angela drew on her experience in Jigsaw to warn, in her submission to the Law Commissioners in 2019 (quoted here) of the harm caused, to both mother and child, by the fracturing of the mother/child bond.

The Law Commissioners’ proposals for surrogacy law reform were not published until 2023, a year after Angela died. It was clear that the interests of women and children had been sidelined - the whole emphasis was on making things easier for commissioning parents. As yet, the Law Commissioners’ proposals have not been taken up by government, but more evidence of the harms of surrogacy is entering the public sphere, thanks largely to the work of three campaigning organisations - Stop Surrogacy Now UK, Surrogacy Concern, and Nordic Model Now.

Awareness of the harms of surrogacy is growing. Adoption is not as harsh as it was in the period from 1949 to 1976, yet few are aware that it still involves, all too often, taking children from their mothers. Reacting to the barbarity of surrogacy and the entitled attitudes of commissioning parents, commenters on social media often ask ‘Why don’t they adopt?’ Children do usually benefit more from adoption than from years spent in the care system, but prospective adopters rarely question why the children are in care. Sometimes it is to protect from an abusive family situation, but often it is still because the mother has not been given the support she needs to bring up her child. Adoption and surrogacy each deprive children of contact with their mothers, and they each deprive mothers of contact with their children.

What is a woman?

It’s a short step from denying the reality of motherhood to denying the reality of womanhood.

“Gender identity,” writes Jennifer Bilek, “is the colonisation of womanhood, specifically women’s capacity to reproduce the species.”

For gender identity to be normalised, it, like surrogacy, has to be established in law. Here in the UK, the Supreme Court spent two days last week trying to establish what a woman is. The case, For Women Scotland v The Scottish Ministers, was ostensibly about the operation of a Scottish Government mandate requiring 50% female representation on the boards of public bodies. The Scottish Ministers (ie the Scottish Government) had insisted that men who imagined they were women could count as women, before restricting this to men who had a GRC (a Gender Recognition Certificate - a document that officially falsifies sex). For Women Scotland had appealed to the Supreme Court to establish that women meant adult human females, and did not include men, with or without a piece of paper falsely certifying that they were women.

The Supreme Court hearings, on 26-27 November, were bizarre, and at times reminiscent of medieval debates around how many angels could dance on the head of a pin. There was much discussion, for example, about whether a heterosexual man with a GRC is a lesbian, and whether a lesbian association could exclude a heterosexual man who said he was a lesbian and remain within the law (the conclusion appeared to be that it could only exclude him if he didn’t have a GRC, even though it would be unlawful to ask whether or not he had a GRC). If nothing else, the proceedings have unwittingly presented powerful evidence that the GRA (Gender Recognition Act) should be repealed.

It was Ruth Crawford KC, acting for the Scottish Government, who inroduced a comparison with adoption. She sought to suggest that a GRC was not a legal fiction, because obtaining one was like obtaining an adoption certificate. “A GRC, and the consequences of that,” she claimed , “are no more a legal fiction than is adoption ….. The adopted person is treated in law as the child of the adopter or adopters, and no-one else. Both adoption and the legal recognition of a change of sex have far reaching consequences.”

Ruth Crawford’s whole argument was often hard to follow, maybe because the case is an impossible one to argue, or because acknowledging that ‘gender recognition’ has “far reaching consequences’’ directly contradicts repeated claims by the Scottish government that there are no consequences except for the individual. I’m guessing that because both adoption certificates and GRCs have far reaching real world consequences, she thinks they are not legal fictions. But both falsify reality - one by denying who is the mother, and the other by denying a person’s actual sex. They are both legal fictions, or more accurately legal falsifications.

In response, Aidan O’Neill KC, for For Women Scotland, noted the profound consequences of possession of a GRC for women’s rights. But he could not see that adoption, too, has profound consequences for women’s (and children’s) rights. “Adoption”, he suggested, “doesn’t change the facts but it changes the legal rights associated with being a biological child …. It doesn’t generally impact outside the particular familial relationships that exist. A GRC by contrast … directly impacts upon and compromises women’s rights at large. Adoption does no such thing. It doesn’t adversely affect anybody’s rights. The transfer of parental rights from the biological parents to the adoptive parents in the best interests of the child. But it is essentially a private and family law matter.”

Aidan O’Neill insistence that adoption “doesn’t adversely affect anybody’s rights” suggests he has absorbed a common misconception that women willingly give up children for adoption, rather than acknowledging the reality that their children are almost always taken from them. The whole process has profound consequences, for both mother and child, just as falsification of sex has profound consequences for fairness between the sexes and for the safety, dignity and privacy of women and children.

Setting aside the unwarranted appeal by either side to adoption law, I suspect most non-lawyers coming afresh to the question of how to define woman, and following the Supreme Court proceedings online, would find For Women Scotland’ s arguments, as presented by Aidan O’Neill, to be far more convincing than those of the Scottish Ministers, as presented by Ruth Crawford.

It remains to be seen whether the Supreme Court judges agree. Much will depend on whether they accept Aidan O’Neill’s closing statement that “women’s rights are human rights”. Or whether they conclude instead that patriarchy rules, and women have no rights.