Is the law on surrogacy keeping pace with social change? That’s the question being asked by the Law Commission as it launches its latest consultation.
According to the joint consultation paper, current laws are “overdue for re-examination in light of the social and medical changes that have occurred [since 1990]”. Such changes include the development of new reproductive technologies and “significant changes to our understanding of family, parenthood and the creation of life itself”. The old-style nuclear family – married straight couple, plus biological offspring – represents fewer and fewer of us. Shouldn’t our approach to surrogacy be amended accordingly?
Certainly that would seem the progressive thing to do. In one recent Guardian piece on the US surrogacy industry, a clinician commented on how “far behind” the UK is. In the US, commercial and social surrogacy are rapidly gaining social acceptability; here, gestating a child on behalf of others remains an altruistic enterprise, largely reliant on trust.
So how could things change? The key proposals put forward by the Law Commission include the creation of a “new surrogacy pathway”, which would allow intended parents to become legal parents from the moment of birth, and the payment of fees for those providing “the service of being a surrogate” (currently surrogates are only entitled to receive expenses). Both of these ideas could well make the UK process clearer and more efficient, with the added benefit of seeming in tune with modern thinking on feminism, gender and the family.
We know that not all “traditional” families are happy, and that children thrive with people who love and want them, regardless of origins. We know, too, that the fetishisation of biological motherhood has been used to exploit the few women for whom caring comes naturally, and to vilify the many for whom it does not.
Thus to many, the growth of surrogacy can appear perfectly aligned with increasing equality and dismantling harmful social hierarchies. Sophie Lewis, author of the recently published Full Surrogacy Now, even goes so far as to suggest that denaturalising the mother-child bond “opens up a space for revolutionary politics”. But is this really the case?
Certainly it’s true that questioning what Shulamith Firestone called “the tyranny of the biological family” and recognising the economic value of gestational labour have long been important to both feminists and socialists. A significant rise in the use surrogacy would necessarily reframe structures of kinship. However, problems arise if we fail to recognise why the traditional nuclear family exists in the first place, and what it is we want to change. It is perfectly possible to disrupt one harmful social construct, only to put a sleeker version in its place.
One of the central purposes of “traditional” marriage has been to facilitate the appropriation of female reproductive labour by establishing paternity. It arose at a time when humans did not understand how an embryo was formed, let alone have access to IVF. But what if they had? Perhaps patriarchy would never have come into being. Or perhaps the male of the species would have simply been able to cut out the middle man (or wife). There’d have been none of that faffing around with declarations of true love just to get your hands on those juicy paternity rights. Instead you could go for the pick ‘n’ mix model: get your babies from one source, your sexual satisfaction from another, your general domestic services from a third. Which brings us to today.
A more liberal approach to surrogacy is liberating – for some. Biological fatherhood is no longer off-limits for men who are not straight. Biological motherhood becomes a possibility for wealthy women who cannot or do not wish to take on the risks of pregnancy and birth.
But what of less privileged women? Is it truly liberating if your only choice is to specialise? If, instead of being a whore in the bedroom, a maid in the living room, a cook in the kitchen, et cetera, et cetera., you now get to be just one? (Just like in The Handmaid’s Tale – only this time it’s okay because the god is capitalism instead of the boring one from the Bible.)
The proposed changes in law have the potential to exploit economic pressures on potential surrogates and limit the time frame in which these women might reasonably change their minds. They risk re-inscribing rules that dictate who gets to have babies for themselves, and who doesn’t. As such, they could send us back to a far more conservative age, such as the one in which a friend of my mother’s, who gave birth unmarried in the early 1960s, was coerced into giving up her baby for adoption.
This woman still recalls running out of the hospital, through the snow, her slippers soaked, still bleeding, breasts red hot and aching with milk, following the car that took her baby away. She’d changed her mind. It didn’t matter. She didn’t see her daughter again for four decades. However much traditional motherhood is constructed through artifice and sentimentality, the feelings of those who gestate and bear children have been disregarded far too often for us now to insist they can be signed away in advance.
We do not need to change UK surrogacy law. A far more obvious and overdue way to end reproductive inequality would be to tackle class, sex-based and racial inequality. To enable women to have babies without having to become financially dependent on men. To enable people from marginalised classes and races to prioritise the care of their offspring, not those of the white and the wealthy. To enable women to access abortion, and to afford to keep children they might otherwise have given up for adoption. To make altruistic surrogacy a meaningful choice without the shadow of inequality and coercion.
All of this would be far, far more radical than merely facilitating Patriarchy 2.0. Those are the things on which I’d like to see a consultation.
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