Womb service: the moral dangers of surrogacy

Last month, the Law Commission published its long-awaited report on the legal status of the surrogacy industry. It contained – as expected – one particularly alarming recommendation. Alongside various tweaks to payment and regulation processes, the Commission suggests a crucial change to the parental status of a baby born by surrogacy.

At present, the woman who gives birth to the baby is considered to be that child’s legal parent, and the intended parents are obliged to apply for a parental order following birth. But if the Law Commission gets its way, the situation will be reversed. Although the surrogate will still have the right to object, the default presumption in law will be that she is not the child’s mother. In implementing this recommendation, the UK government would be making a clear statement on the nature not only of surrogacy, but also of motherhood: to put it bluntly, that it is both morally and legally acceptable to deliberately engineer the separation of mother and infant.

The surrogacy industry is still comparatively small in the UK but is growing quickly – quadrupling over the past decade to around 450 cases a year (although it isn’t easy to get a precise number, given insemination often happens in overseas clinics).

Globally, meanwhile, it’s estimated that the market for surrogate babies will be worth £22 billion by 2025, up from £5 billion in 2018. It is not difficult to find extreme and worrying cases in countries with more liberal legal arrangements. For instance, in 2018 a wealthy single Japanese man at the centre of a ‘baby factory’ scandal in Thailand was awarded sole parental rights to the 13 children he’d fathered through Thai surrogate mothers. There are also plenty of chilling accounts of human rights abuses at surrogacy centres in countries such as India, where poor women have been treated as brood mares for rich foreigners.

Concerning cases have reached the British courts too. In 2016, a legal challenge was brought by a gay couple against their surrogate mother. The couple had found the young woman, who had learning difficulties, on Facebook and met her at a motorway service station to sign the agreement. Already having doubts, she was paid to travel to Cyprus where she was implanted with two embryos, created by the commissioning father’s sperm and a donated egg. The surrogate subsequently suffered a miscarriage of one of the babies and decided she wanted to keep the other, telling the couple that both had died. When they discovered the truth, they took her to the High Court seeking a declaration of parenthood. The court decided in favour of the surrogate mother, finding that she would have found it hard to understand the full implications of what she had signed up for.

Such examples invite an easy response: yes, the bad cases are bad, and yes, the industry has its dark side. But what of the free-range, organic version of surrogacy, in which the women are altruistic volunteers? After all, the Law Commission remains steadfastly opposed to the commercialisation of the industry, for the same reason that the buying and selling of kidneys is illegal in this country (and indeed every country except Iran).

But there remains a profound problem with surrogacy, even in its free-range and organic form: it deliberately breaks apart an essential human relationship – arguably, the foundational human relationship. This feature was more obvious during its early days, when arrangements always took the so-called ‘traditional’ form, with surrogate mothers contributing both their eggs and their wombs to the process. In other words, these women were paid to hand over babies that were biologically theirs. Inevitably, this led to legal disputes, because when surrogate mothers tried to retain custody of the children – as they quite often did – their claims were made stronger by virtue of their genetic connection.

The Baby M case in New Jersey in the mid-1980s offers an infamous example of a traditional surrogacy arrangement gone wrong. The surrogate, Mary Beth Whitehead, handed over the baby after birth as promised, but then returned to the commissioning parents’ home the following day, threatening to kill herself if she could not see her child. When she took the baby to her own home and refused to relinquish custody, a legal battle ensued – one that she ultimately lost.

Modern so-called ‘gestational’ surrogacy arrangements reduce the legal risk by weakening the surrogate mother’s claim to custody, since the baby is conceived using a separate egg donor, meaning that the woman is not genetically related to the baby she carries and gives birth to. Or as one surrogacy industry website puts it: ‘Gestational surrogates are not biologically related to the babies they carry at all.’

But such surrogacy cannot void the maternal relationship, because what on earth is pregnancy, if not ‘biological’? The child born to a mere ‘gestational’ mother comes into the world composed entirely of matter produced by her body, and craving her touch, voice and smell – the only things a newborn baby knows. It has long been recognised that maternal separation causes stress to newborns, potentially leading to permanent alterations to the brain. This is just as true for babies born via gestational surrogacy.

And although it might suit the interests of the industry to claim otherwise, women’s bodies do not actually function as neat vessels, entirely separate from the children they create. For instance, in a phenomenon known as foetal microchimerism, a baby’s cells remain in his or her mother’s body. ‘Our children colonise our lungs, spleens, kidneys, thyroids, skin,’ points out the science writer Abigail Tucker in her 2021 book Mom Genes. ‘Their cells also embed in our bone marrow and breasts – and often they stay forever. Scientists have found rogue foetal cells while dissecting the cadavers of old women whose babies were by then middle–aged. Long after giving birth, the bodies of surrogate mothers are scattered with the genes of strangers’ progeny.’

When we decide that an egg donor has a better claim to motherhood than a surrogate, we are privileging the male-type relationship over the female-type relationship, much as in Aristotle’s ‘flowerpot theory’ of reproduction, in which the woman does nothing but supply the inert container. But anyone who has experienced pregnancy and motherhood, or observed it up close, will know that it is not merely a physical process. Which is why there is a recognition, even among defenders of the industry, that surrogacy can be emotionally difficult.

One typical guide for commissioning parents details the need to engineer an ‘emotional transfer’ when a child is born by surrogacy. The handing over of the baby is the whole point of the exercise, the act for which a surrogate is actually employed. And when she is separated from the baby that has lived inside her body for his or her entire existence, there is a risk – as the industry guide acknowledges – of ‘psychological complications’.

In the UK it is illegal for a dog breeder to permanently separate a puppy from its mother if it is under eight weeks old. Yet the surrogacy industry has no such limits placed on it. And this despite the fact that the emotional bond between human mothers and babies is much stronger, by virtue of the fact that babies are much more vulnerable than puppies and so require more devoted maternal care, including – in the era before infant formula – round-the-clock breastfeeding. Consequently, as the feminist writer Mary Harrington points out: ‘Pregnancy doesn’t just create a baby, it creates a mother.’ The long process of gestation causes irreversible changes to the maternal brain, priming her for the all-consuming task of infant care.

I remember vividly the strange and obsessive psychological state I entered when my son was born. I thought only of him, dreamed only of him and, even while waking, would close my eyes and see only his face. In those blurry early weeks and months, just popping to the shops without one’s newborn in their pram or sling feels wrong. A common metaphor used among mothers I know, when describing their first experiences of temporary separation from their young babies, is that it feels like ‘losing a limb’.

As the paediatrician Donald Winnicott once wrote: ‘There is no such thing as a baby. There is only a baby and someone.’ Babies cannot survive without the devoted care of at least one adult, almost always that baby’s mother. Thus both members of the mother-infant dyad cannot really be understood as individuals, at least in the early days. Two hundred million years of mammalian evolution have left human mothers profoundly attached to their babies, an attachment that is a source of both great joy and, often, great pain.

No wonder women are significantly more likely to experience postpartum depression after they give birth to children conceived through surrogacy, given that these natural emotional processes have been abruptly interrupted. Of course there have always been, and will always be, instances in which mothers do not bond with their infants due to mental illness, or when the risk of abuse means that children must be removed. But we all recognise these to be tragedies, with lasting emotional consequences for everyone involved. The key feature of surrogacy, even in perfect conditions and with no hint of financial coercion, is that it is designed to engineer exactly this outcome – to break up the mother-infant relationship and sell it for parts.

We are already an outlier in Europe when it comes to surrogacy legislation. Surrogacy is banned in Spain, Italy, Germany, Switzerland, Norway, Finland, France, and almost all of Eastern Europe. Ukraine, Greece and Portugal permit surrogacy only for heterosexual couples, and only in some circumstances. The Law Commission’s proposals would push the UK even further away from the European norm.

This has been presented as an inevitable process, even a natural one. ‘It’s 2023’, I’ve heard or read more than once. ‘The UK needs to get with the times.’ But the mother-infant relationship has existed for as long as mammals have existed, making it older than birds, older than snakes, older than flowers. It is ancient, it is precious – and it deserves to be protected.