Infertility can be deeply painful. There is a lot a compassionate society can – and should – do to make fertility treatment available to those who can be assisted to have a child with medical intervention. Few would disagree though that there are ethical boundaries to this, shaped by children’s interests, not just adult desires.
Last week, the Law Commission drove a coach and horses through that moral frontier – which it framed as an overdue modernisation of the law – by publishing draft proposals to reform the UK’s surrogacy framework. Implicit in them is the, I suspect controversial, assumption that a single man seeking to have a child alone through surrogacy, because he doesn’t want or can’t maintain a committed relationship, presents no greater moral quandary than a couple seeking IVF. How controversial is anyone’s guess: the Law Commission hasn’t canvassed public attitudes.
Surrogacy is the practice of a woman conceiving, gestating and giving birth to a baby – using her own or donor eggs – for another couple or individual who can’t do so themselves. The UK is one of few countries in which it is lawful. There are important safeguards intended to guard against exploitation: surrogates can only be compensated for reasonable expenses, to try to ensure their motivations are altruistic, not financial. The surrogate is legally the child’s mother until the intended parents are granted a parenting order by the family courts, if and only if they deem it is in the child’s best interests.
Surrogacy remains small-scale in the UK: just 300-400 orders are granted a year, limited by the number of women who want to become surrogates. But in countries like the US and Georgia, where commercial surrogacy is legal – where economically vulnerable women can be paid to carry a baby and surrogacy is governed by legally enforceable contracts that the UN special rapporteur on child exploitation says constitute the sale of children – it is bigger business. In contrast, the UK legal framework tolerates surrogacy but does not actively encourage it.
The Law Commission has recommended wholesale reform that makes the surrogacy process more akin to IVF. It proposes a new “pre-conception” pathway, governed by a surrogacy agreement, in which the intended parents automatically become the legal parents of the child at birth unless the surrogate withdraws consent before birth. The family courts will no longer oversee these arrangements unless the surrogate applies for a parental order in the first six weeks after birth. Instead, surrogacy will be pre-approved by surrogacy agencies, in the same way fertility clinics sign off on IVF. The commission makes sweeping – but unevidenced – claims that this is in the best interests of children and that because it reduces uncertainty, it will increase the amount of surrogacy that happens in the UK by discouraging people from making use of more exploitative regimes abroad.
There are some positive aspects to the proposals: tighter regulation of expense payments to avoid surrogacy being commercialised through the back door; everyone involved would have to undergo counselling. Children would have the right to access information about their surrogate in the same way as those conceived using donor sperm or eggs.
But in adopting a starting point that surrogacy is just another form of assisted conception, the Law Commission has gone beyond its remit. It reduces pregnancy to a process, a transactional exchange of body fluid between a woman and a foetus rather than a relationship between a mother and the life she is nurturing physically and emotionally, that there are ethical considerations involved in breaking at birth, regardless of the desires of the individual adults involved. It is for us as a society to decide whether we want the law to actively encourage rather than tolerate this, not for the Law Commission to make recommendations without even exploring public attitudes.
The Law Commission report is peppered with imagined case studies that invoke sympathy: straight couples where a woman can’t carry a pregnancy and gay male couples who see surrogacy as their only way to have a biological child. But a better ethical test is the men who openly say they want to become fathers through surrogacy because they would rather be single parents. There would be few barriers to them doing so.
This encapsulates the extent to which the Law Commission proposals are catering to the desires of adults with a vested interest in surrogacy – however valid their reasons – over and above child welfare. It proposes a light-touch welfare check as part of the pre-conception pathway, but this would rely in the main on potential parents self-declaring issues of concern and would be carried out by surrogacy agencies that though not-for-profit would still have an interest in making surrogacy happen; the Law Commission itself suggests that private fertility clinics can set up not-for-profit “arms” to act as surrogacy agencies. It explicitly declines to say that the person legally responsible for these checks should have knowledge or experience of child safeguarding. These surrogacy agencies would supposedly be regulated by the Human Fertilisation and Embryology Authority, which lacks meaningful expertise in child welfare. It is all jaw-droppingly naive.
The counter is that there are only light checks for women and couples conceiving through IVF and nothing for people who become parents naturally. But surrogacy is the only route through which a single man as a sole parent can create a biological child.
Gestation is a natural if not fail-safe form of safeguarding in a world where a minority of men are responsible for almost all physical and sexual violence and men on average pose a different risk to children than women. This isn’t to say some single men who want to go it alone might not make good fathers – single men can and do adopt successfully after robust welfare checks – but that it should be harder than getting signed off for IVF.
It is reasonable to think a man saying he wants to be a single father because he doesn’t want a relationship should prompt some investigation by someone expert in child welfare about his emotional capability to parent alone.
At the heart of the Law Commission proposals is the assumption that surrogacy should be made cleaner to the benefit of the adults involved. But surrogacy is inherently messy, uncertain and ethically complex, because no one has a claim to a baby they haven’t given birth to purely on the basis of genetics and pregnancy cannot be reduced to a transaction.
The Law Commission loftily calls for the government to “endorse these essential reforms”. But on an ethical issue such as this it is vital that politicians consult the public rather than taking direction from a legal body that has grossly overstepped its remit.
• Sonia Sodha is an Observer columnist
• This article was amended on 5 April 2023. In an earlier version the writer commented that the Human Fertilisation and Embryology Authority (HFEA) “has no expertise in child welfare”. This has been amended to “lacks meaningful expertise” to make clearer that, while the HFEA has a statutory function in overseeing “welfare of the child” assessments required of fertility clinics, this is the writer’s assessment of the agency’s overall expertise in child welfare and safeguarding. The name of the Human Fertilisation and Embryology Authority has also been corrected.
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