In a world first, MPs recently voted to permit IVF babies created using biological material from three different people, in order to prevent serious genetic diseases caused by faulty mitochondria passed on by the mother. This looks set to benefit around 2,500 UK families. Much has been made of the creation of ‘three parent babies’. That term is misleading; whilst the biological material of three people is involved, less than 0.02% of the child’s DNA will come from the anonymous female mitochondrial donor. However, there is another form of ‘three parent’ baby-making, the rules for which are long overdue reform: surrogacy.
The use of surrogacy is on the rise, no doubt in part fuelled by same-sex partnerships. However, the process is fraught with difficulties, from the assignment of parental rights to the non-enforceability of surrogacy agreements, and, crucially, the fact that ‘commercial’ surrogacy is illegal in the UK.
First of all, the parental rights assigned at a surrogate child’s birth fail to reflect who will actually care for the child. Under UK law, the carrier of the child is considered the legal mother, no matter if they are genetically related or not. If the carrier is married or in a civil partnership, her partner becomes the child’s second parent. A genetically-related commissioning father will be considered the second parent if the surrogate doesn’t have a partner, but a commissioning mother will never automatically receive parenting rights to the child.
To obtain proper legal parenthood, commissioning parents must apply for a Parental Order no more than six months after the birth of their child. Only couples may apply for an order and they can take months to process, leaving a child’s main carers in legal limbo.
Another interconnected and significant issue is that surrogacy agreements are only considered informal arrangements, and cannot be legally enforced. This means that no matter how careful or extensive arrangements are made, there is no guarantee that they will be honoured. In the UK where the surrogate is considered the legal mother, they are able to refuse to hand over the child, even if it is genetically unrelated to them.
Surrogacy agreements with legal weight would alleviate both these problems. An obvious solution would be the recognition of some kind of ‘surrogacy pre-nup’, outlining what compensation or fees will be given to the surrogate, as well as establishing the ‘correct’ parental rights from the moment of birth.
However, another significant barrier to the use of surrogacy is the fact that commercial surrogacy is strictly prohibited in the UK (as it is in a large number of other countries). Currently surrogacy can only take place on ‘purely altruistic’ grounds, with compensation limited to ‘reasonable expense’ only. Prospective parents are banned from advertising their interest in surrogacy, as are potential surrogates. If no suitable surrogates can be found in the UK, commissioning parents often look to certain US states (such as California) or the 'baby factories' of India, Thailand and Ukraine to find a willing surrogate.
The foundations of the legal status of surrogacy stem from The Warnock Report into IVF in 1984, which stated “it is inconsistent with human dignity that a woman should use her uterus for financial profit”. But what exactly is so demeaning about offering gestational services for financial compensation or gain?
It’s often argued that commercial surrogacy substitutes the norms of parental love with market norms. It encourages us to think of parental rights as more like property rights than a fiduciary relationship, and the ‘selling' of children, especially for profit, is wrong. However, what’s taking place with commercial surrogacy is the purchase of gestational services and the delivery of a child, not the child itself. The property rights involved are those of the surrogate's, who has rights of control and exclusion over her body and (most liberals will argue) may use her uterus as she sees fit.
Another related idea is that there are some things - like votes- which are simply too fundamental and valuable to sell, and that the bringing about of a child is one of these things. This type of argument is made by Michael Sandel, who claims that putting a price on some of the ‘good things’ in life corrupts them, and that their commodification results in their degradation.
However, paying for gestation does not diminish the innumerable other ways in which it has value. Placing a market value on something is not to say that it has no value over and above its price - ‘priceless’ paintings are still bought and sold for sums of money. The gift of a child to a couple, and the gratitude felt towards a surrogate can indeed be priceless, even if money is exchanged.
The real question is what informed and consenting adults may do with their bodies and its functions. Arguments defending prostitution form an obvious parallel here. But even prostitution aside, there are a number of ways we profit from using our bodies and its products. We allow hair, blood, and tissue to be sold, so why not the uterus? People use their hands and brains for profit, and ‘sell’ their bodies to medical science and to sporting contracts — what then, is so immoral about gestating someone’s child for a fee? Sperm donation is not particularly morally troubling to us, even though this too separates the genetic and biological elements of baby-making, allows the donor to give up parental rights, and to profit from their act.
Admittedly, many may feel uneasy about the entire surrogacy process; it uses our bodies in ways which are somewhat unnatural, and uproots our usual intuitions about motherhood, pregnancy and prenatal bonding. Whilst we may accept it in extreme, altruistic cases, perhaps 'normalizing' the process with a commercial market leaves an unpleasant taste in our collective mouths. However, a feeling of unease shouldn’t be justification alone for prohibition.
Our comfort zones and thoughts on what are acceptable change over time. Single parenting loses its stigma, and the acceptability of same sex couples grows. When first introduced the contraceptive pill was considered an aberration of nature. Today it is considered one of the biggest feminist breakthroughs of the 20th century. Perhaps with time the position of ‘the gestator’ will come to be viewed as a honourable and respectable profession, bringing joy to families and worthy of commercial recognition. Science lets us wage war on biological conventions and constraints, and it is time for us to tackle the social and legal barriers, too.