The Need To End Surrogacy Prohibition In The UK
Surrogacy is an arrangement where a woman bears and delivers a child for another couple or person. Surrogacy may be commercial or altruistic: in commercial surrogacy the surrogate profits financially, whereas in altruistic surrogacy the surrogate is only reimbursed for expenses. This paper will reason that the UK should move from prohibition of commercial surrogacy to tight regulation in two parts. Firstly, by examining the UK’s legal framework and demonstrating prohibitive legislation is inherently weak. Secondly, the legislation is ethically flawed as it ignores the international climate of surrogacy, merely shifting the burden geographically to more vulnerable women in LMICs (low or middle-income countries). Focusing on autonomy within surrogacy, I will argue ending prohibition in the UK would reduce the incidence of harms caused by cross-border surrogacy (CBS).
UK surrogacy legislation stems from the Surrogacy Arrangements Act (SAA, 1985), and the Human Fertility and Embryo Act (HFEA, amended 2008). The SAA legislates only altruistic surrogacy is legal. The birth mother is the legal mother, and parenthood is transferred to the intended parents (IPs) later via a parental order. However, if IPs pay a surrogate beyond reasonable expenses, they may become ineligible for a parental order. The court should only grant the order if satisfied ‘no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants’. This condition applies even if the surrogacy arrangement took place in a country where commercial surrogacy is legal. However, when The Human Fertilization and Embryology (Parental Orders) Regulations 2010 ordered the child’s welfare should be the paramount consideration, the SAA became inherently weakened. This was illustrated in the case of Re: X & Y (Foreign Surrogacy), when a British couple paid a Ukrainian surrogate 235 Euros per month to carry their twins, then 25,000 Euros when they were born. The surrogate used these payments for a deposit on a flat, indicating the payments exceeded her expenses. Nonetheless, Hedley J granted the parental order, stating: ‘‘it is almost impossible to imagine a set of circumstances in which. . . . the welfare of the child (particularly a foreign child) would not be gravely compromised. . . by a refusal to make an order. ’
The Global Market
With the UK’s legal prohibition, many IPs struggle to find a surrogate. However, in countries where commercial surrogacy is legal there are many women willing to be surrogates. Therefore, increasingly IPs are travelling abroad for surrogacy. A popular choice of UK IPs, India was once the world’s greatest provider of surrogates, with its surrogacy market worth an estimated $2. 5 billion annually. When the Indian government banned surrogacy for same-sex couples in 2013, the market moved to Tabasco in Mexico. Further regulations in 2017, banning foreign couples from hiring a surrogate in India saw business transferring to Russia, Georgia and Ukraine. With no international laws regulating surrogacy, national regulations have not prevented commercial surrogacy but merely relocated it. Bioethical analysis Some condemn surrogacy, possibly as a result of CBS; in 2010, the Human Fertilization and Embryology Authority called CBS the ‘most pressing and challenging new development in assisted reproduction treatment’. Then in 2014, the European Parliament specifically cited the involvement of ‘vulnerable women in developing countries’ as a motivator for their condemnation. Advocates for surrogacy argue if a surrogate chooses to enter the contract autonomously it is morally acceptable. However, for a decision to be autonomous, it must be voluntary, free from coercion, and informed. I will go on to demonstrate why autonomy is uncertain within LMICs, and why it may be more likely in the UK.
Typically, IPs in CBS come from high-income countries, and surrogates from LMICs. With significant economic inequality between the two parties, the possibility of women being exploited has been raised. In response, it has been argued a woman’s autonomy to consent to surrogacy for financial gain should be respected. However, one key indicator of autonomy is voluntariness and research suggests surrogates in LMICs feel they have ‘no other choice’, referring to surrogacy as ‘majboori’, translating to a compulsion, to which they are obligated, constrained and helpless. The majority of Indian surrogates lived below the poverty line. With surrogacy providing the opportunity to earn $5000 – $7000, where the average Indian woman makes $300 annually, it is unsurprising the primary incentive for surrogacy is financial. One surrogate, stated “Who would choose to do this?. . . it’s just something we have to do to survive…”. UK surrogates reflected different motivations; research found the primary motivator for 91% of UK surrogates is ‘wanting to help a childless couple’ with none reportedly becoming surrogates out of financial desperation. In the USA, where commercial surrogacy is legal, findings were similar. Studies revealed women become surrogates because they want to help others. Generally, surrogates are high-school, often college graduates from middle or working-class families, and it is rare to find one has been on social assistance, making it difficult to argue surrogates lack other remunerable options. This is not to say there is no risk of exploitation of UK surrogates but research suggests this would be a rarity, as opposed to LMICs where exploitation encompasses many surrogacy arrangements.
The patriarchal nature of Indian society raises concern women may be forced into surrogacy. In India, only 12% of women are the main decision maker in relation to their own health care. One surrogate revealed she ‘didn’t really want to do it’ but her husband insisted. For some, it was not a matter of insistence but persuasion by their husbands. When living in a society where the husband is often the authoritarian the question is whether the decision is truly hers, or whether the patriarchal nature of society constrains her choice to refuse? Conversely, research suggests surrogates in the UK and USA make decisions themselves and are independent thinkers, not coerced by family members into either altruistic or commercial surrogacy arrangements. Studies found surrogates in the USA tend to be assertive, intelligent and self-aware. With women’s social status similar in the UK and USA, a ban on UK commercial surrogacy would arguably be a paternalistic act, restricting women with the means to make autonomous decisions. Informed Consent To provide informed consent, the surrogate must understand what the treatment involves, the benefits and the risks. In India, studies suggest this is not the case. One surrogate quoted: ‘I don’t know what will happen… They just told that you have a drop of water, we will keep it and grow it by means of injection. You will have to keep it in your womb for nine months and then deliver the child…. No benefit, no risk was told. ’ In fact, none of the women in this study were able to explain what had been done to them. In India, doctors are regularly afforded autonomic deference; therefore, it is unsurprising that surrogates revealed they did not ask for more information for fear of bothering the ‘busy doctor’. Indian surrogates are often illiterate; unable to read the contract, which may be printed in English, and signing it with a thumbprint. There seems little scope for ensuring provision of informed consent. This is not to suggest the illiterate and poor lack the ability to consent, but the effective capacities of the surrogates and their limited power within the arrangement makes them vulnerable to exploitation.
Contrastingly, UK research found the majority of surrogates feel well informed about the practical and medical aspects of surrogacy. Women in the UK and USA experience a lack of regret and distress following surrogacy, which Busby and Vun ascribed to women making decisions ‘with informed consent, an understanding of what the surrogacy arrangement requires and a confidence they can carry through with their initial decision to participate in surrogacy’. A global ban? It has been argued a resolution to the issues arising from CBS would be a global ban on commercial surrogacy. However, presently this seems unachievable, given the international differences on law, policies and values, not limited to views on same-sex couples. For the majority of couples opting for surrogacy it is their last resort. A ban risks the surrogacy market being driven underground, leading to greater risk for surrogates, IPs and the future child. This has already been exhibited following Cambodia’s ban: in 2018 32 Cambodian women were arrested for acting as commercial surrogates for IPs from China. The Cambodian authorities released the women on the condition they kept and raised the children themselves, demonstrating potential risks of a such a ban.
Commercial surrogacy provides a significant opportunity for infertile and same-sex couples to build families. However, prohibition in some countries coupled with legalization in others has generated great risk for both IPs and surrogates. With it seeming unlikely international consensus will be reached, we must look instead to what the UK can do to avoid the ethical dilemmas posed. It is time for the UK to acknowledge the limits of its domestic laws in protecting women from harm in a global environment, and to move to effective regulation of commercial surrogacy.
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