Not learning from history

A law reform that would boost the UK surrogacy industry and erase women

At the end of last month, the Law Commissions of England & Wales and Scotland published their long-awaited Report on surrogacy law reform, together with a Draft Bill to be considered by the UK parliament. Their proposals are essentially the same as they had suggested in a 2019 Consultation Paper, with some minor modifications to take account of points raised in the consultation process. That process focused almost exclusively on the interests of surrogacy agencies in growing their market, by simplifying the surrogacy process for new categories of commissioning parents in the UK. As with earlier legislation on Adoption (1949) and Gender Recognition (2004) the interests of women and children have been sidelined. Central to each of those earlier law changes was falsification of birth records to create a legal fiction, and in each of those cases the long-term consequences of ignoring the interests of women and children have been far-reaching. Falsification of birth records to erase the mother is a key feature of the proposed surrogacy law reform, with the commissioning parents becoming the legal parents at birth. If these reforms go ahead, the adverse consequences for women of failure to learn lessons from past legislation on Adoption and Gender Recognition will be considerable.

The new surrogacy pathway

The Law Commissions propose a ‘new pathway’ for domestic surrogacy. In this pathway, surrogacy agencies will be regulated. A regulated agency would arrange a surrogacy agreement between it, the surrogate (the Commissions’ dehumanising term for a surrogate mother), and the ‘intended parents’ (their preferred term for commissioning parents). Central to this agreement would be an understanding by all parties that the intended parents will become the legal parents at birth.

Some concessions to the human rights of ‘the surrogate’ would include a right to withdraw her consent to the agreement, at any point from conception up to six weeks after birth. The Report makes it clear, though, that this is to apply only in exceptional circumstances. Realistically, a surrogate mother would be under enormous pressure to fulfil what she had signed up to in the formal agreement.

Consultation bias

A post by Lexi on the Nordic Model Now! website details the organisations and individuals that the Law Commission met with before publishing its Consultation Paper in 2019. It is clear from its responses to her Freedom of Information requests that almost all these initial discussions were with organisations or individuals who actively promote surrogacy, or with commissioning parents. In contrast, there were formal meetings with just two women who had been surrogate mothers, and just one adult who had been born via surrogacy. Some women’s groups, mainly health charities, were contacted, but Nordic Model Now!, EVAW and Women’s Place UK were only contacted after the Consultation Paper had been published.

“I think it’s reasonable to expect people who are involved in surrogacy, who make their income from it or build their families through it, to be pro-surrogacy. But it’s also reasonable to expect our law makers and the people involved in drafting proposed laws and making recommendations to Parliament to take a wide range of views and to be unbiased in their approach so that they include all stakeholders because we’re all stakeholders in the process of developing the laws of our country.”

(Lexi, What FOI requests revealed about Law Commission’s surrogacy consultation, NMN Sep 2020)

It’s hardly surprising that almost all of the 118 questions in the 475 page Consultation Paper reflected concerns that had been raised in the Law Commissions’ initial discussions with the stakeholders they had selected.  But the bias didn’t stop there. In their 2023 Report they had to try and explain why they downplayed consultation responses that went against their recommendations.

Of the 681 responses to the  Consultation Paper, the Report notes that “Over half  of the responses we received were from consultees who opposed most or all of our provisional proposals for reform, and advocated instead for surrogacy to be prohibited.” These responses, it noted “tended to centre their critique of surrogacy on (I) the exploitation of women and commodification of their bodies; and/or (ii) the fragmentation of motherhood caused by the separation of pregnancy and parenthood in surrogacy, and the commodification of children”. It goes on to explain why they will downplay these concerns - “The Law Commissions have never determined our recommendations for reform simply on the basis of a numerical count of consultees who favour a particular approach.” Instead, “they take into account a careful analysis of the arguments made by consultees, along with other evidence available to the Commissions, including academic research.”

The Report makes it clear that the Commissions were never going to recommend abolition of surrogacy. So what is most important to them is that  “It was often the case that our provisional proposals were supported by a majority of those consultees who were not opposed to surrogacy.” They claim that the concerns of opponents are not totally ignored, and that their proposed reform:

(i) addresses possible exploitation of ‘surrogates’ by offering counselling, legal advice, medical checks, and the right to withdraw consent

(ii) addresses concerns about commodification by rejecting “payments for gestational services” and requiring surrogacy agencies to operate on a non-profit -making basis, and

(iii) accepts the findings of academic research which reassures that there is no harmful break in the mother/child bond..

The absence, in a 587 page report, of any statistical analysis of  the consultation responses is telling (the total of 681 responses is the only number, and there are no percentages). A statistical analysis is promised “as soon as possible following this report”, but there is no sign of it yet, more than three weeks after the publication date. We are told that “over half’ the respondents were opposed to surrogacy, but not what the actual proportion was. And how are we meant to evaluate statements like this: “There was a high level of support from those personally involved in surrogacy agreements for the proposal for the intended parents on the new pathway to have automatic parental responsibility/PRRs in respect of a child”? How high, for example is a high level? Is the level of support the same for intended parents and surrogate mothers? And what support or opposition was there from respondents not personally involved in surrogacy arrangements?

Not learning from history - Adoption

The least convincing of the Report’s many dubious claims is that it has addressed consultees’ concerns that its proposals break the mother/child bond. Here, it relies on academic studies based on extremely small sample sizes (34 surrogate mothers in one study, and 28 children born via surrogacy in another). The mothers in the first study were all recruited by either a surrogacy agency or commissioning parents, so the sample was not only tiny but biassed in favour of positive results. Even so, eleven of the mothers said they experienced difficulties in the weeks after handover, and two of them continued to experience difficulties a year later. The second study, of children born from a surrogacy arrangement, found that they generally had, at age 14, satisfactory relationships with their legal mothers.

The Report concludes, on the basis of these studies, that there is no evidence of harm to surrogate mothers or children -  claims of harm, it insists, are “not supported by the available longitudinal empirical research on UK-based surrogate families which have been peer-reviewed.”

Sensing that we may not have been convinced, it reiterates, later in the same paragraph, that “they are peer-reviewed independent studies and offer the most comprehensive longitudinal studies of surrogacy in the UK.” And in case we have forgotten, later in the Report we are reminded, again, that these studies “are the most comprehensive and rigorous longitudinal studies of surrogacy in the UK which currently exist”. These studies show, we are assured, that “outcomes for surrogate-born children are in line with naturally conceived children, and that surrogacy is not harmful to children.”

These may be “peer-reviewed independent studies”, and they may relate to surrogate mothers and to children born via surrogacy, but what the Report’s authors appear not to have noticed (or perhaps have deliberately ignored) is that they are not studies of the bond between surrogate mothers and their children that has been broken - they are studies of the reported well-being of a tiny biassed sample of mothers and of the quality of the relationships between a tiny sample of 14 year olds and their legal (not their surrogate) mothers.

Consultation responses that drew the Commissions’ attention to the experience of adoptees were ignored. Adoption is different from surrogacy, but the breaking of the mother/child bond is common to each. In 1949, the government of the day bowed to the lobbying of adoption agencies and adoptive parents, and totally severed the link between the mother and her child. Not only were mothers not consulted, those who were unmarried were forced to give up their children.

In 1952, psychiatrist Erich Wellisch drew attention to the psychological damage brought about by adoptees not knowing who their first mothers were. In 1975, my late wife, Angela Hamblin, a first mother herself, founded an organisation, Jigsaw, which brought together first mothers and adoptees to campaign successfully for law reform that gave adoptees access to their original birth records. I described that campaign here. Jigsaw meetings were intensely emotional and consciousness-raising:

”For some of the mothers in particular this was the first time in twenty or thirty years they had had the opportunity to speak of their illegitimate pregnancies and the pain of losing their babies in adoption. For the first time in their lives adoptees heard what it was like to be an unmarried mother of their own mother’s age. And for the first time the mothers could hear the care and concern which those adopted people felt for their natural mothers.”

(Jigsaw, The Other Side of Adoption, 1977)

Access to their original birth records from 1976 gave some healing to adoptees, and made it easier for them to contact their first mothers. It did not completely take away the pain, however, as first mothers and adoptees testified to the UK Parliament’s 2022 Inquiry into forced adoption.

The break with the mother that the proposed surrogacy reform requires is not as total as that which was established by the 1949 adoption law. Children born from surrogacy would, under the Law Commissions’ proposals, be able to access a Surrogacy Register, giving them access to non-identifying information at age 16, and identifying information at 18, ”about surrogate, intended parents, and gamete donors”. Angela, in her response to the Law Commissions’ consultation, noted how surrogacy reduced motherhood to “a transaction between an egg, sperm, and a rented womb”. One wonders how a 16 or 18 year old, seeking information about his or her origins, would feel on discovering parties to a transaction, identified as such with the Register’s brutally reductive language. The Law Commissions go even further in erasing the surrogate mother by having the intended parents named as the child’s parents on his or her birth certificate, even though this denies the reality of birth and would conflict with the government’s reasonable view that all birth certificates should name the person who gives birth as the child’s mother,

The Report does suggest that surrogacy agreements could include expectations of possible contact between surrogate mother and child, but, even where possible contact arrangements could be included, no provision is made for enforcing them. A recent case, under existing surrogacy law, shows how traumatic it can be for a surrogate mother when promises about contact are broken by intended parents, and how problematic consent is in the context of decisions involving surrogacy.

Not learning from history - Gender Recognition

In 2004, the UK Government passed a Gender Recognition Act (GRA), which allowed adults with a medical diagnosis of ‘gender dysphoria’ to obtain a gender recognition certificate that records their ‘acquired gender’, and to change the sex that is recorded on their birth certificate. For most purposes, this ‘acquired gender’ becomes the legal sex.  A few parliamentarians in 2003 anticipated that allowing legal sex to differ from actual sex might pose problems for women, but these concerns were dismissed, as initial expectations were that only tiny numbers of people (mainly middle aged men) would be involved. Most of the parliamentary discussion focused on how the GRA would enable a same-sex couple to be married. The advantage, it was claimed, was that gender recognition would enable some same-sex couples to be treated as if they were heterosexual couples, and that this would avoid the need for same-sex marriage to be legalised.

Things have changed, massively, in the last nineteen years. Same-sex marriage is now legal (removing a key original argument for the GRA). The numbers of people identifying as ‘trans’ have expanded greatly, though only a small proportion actually have gender recognition certificates.  Adolescent girls and young women in particular have been targeted, on social media and by the medical industrial complex. At the same time there has been intense lobbying for  reform of the GRA to allow self-identification to replace medical diagnosis. This has met with considerable resistance from women’s groups and LGB (without the T) groups.

Self-identification is already built into the policies of many institutions. Rapists who self-identify as women are housed in women’s prisons, women’s refuges accept men who identify as women, males compete unfairly in women’s sports, lesbians and gay men are expected to redefine same-sex attraction as same ‘gender’ attraction, etc. It has become customary for politicians in the UK to tie themselves up in knots if they are asked to define women or men - asking the simple question “can a woman have a penis?” has become a litmus test of where they stand.

James Kirkup, in a recent Spectator article, draws a link between the Law Commissions’ proposals on surrogacy law and the debate about self-identification of ‘gender’. He notes that “Self-ID policies were largely driven by desire to serve trans people; women were an afterthought, at best. In the context of surrogacy, the impression given is that intended parents are the priority, with surrogate women far less important.” He is concerned that the limit of six weeks during which a surrogate mother would be allowed to withdraw her consent after birth ignores the trauma she is likely to be experiencing at that time. Kirkup is particularly critical of how the Report rejects a suggestion that she affirm her consent after the child is born, on the grounds that “her continuing consent can be inferred from her decision not to withdraw her consent.” Read that again, he suggests, “and remember that we’re talking about a woman’s consent to give away her child.”

Parliamentary scrutiny

Kirkup is confident that parliamentary scrutiny will rectify the imbalance in the proposed surrogacy legislation. What he has not noticed is that when it’s a conflict between the interests of powerful men and those of women, parliamentary scrutiny prioritises the powerful men - whether it’s adoptive parents, men who want us to believe they are women, commissioning parents, or the agencies that profit from adoption, ‘gender affirming healthcare’, or surrogacy.. That’s how it is in patriarchy.

Surrogacy reform will be debated in parliament. The surrogacy agencies and commissioning parents will be lobbying hard to get their way. Total abolition may not be a realistic prospect for now, but the least we can do in the meantime is make sure that the interests of surrogate mothers and their children are represented in the debates to come.

For readers in the UK who are concerned, writing to your MP can help. There are useful hints on what to say on the Nordic Model Now! website.. There’s further information about the surrogacy law reform there, and on the Stop Surrogacy Now UK website.

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