When it comes to the controversial issue of surrogate motherhood – and, in particular, payment for such services – the law in the UK needs to be reviewed. So says Sir James Munby, the most senior judge in the Family Division in England and Wales until his retirement in 2017.
Many others including myself have been arguing this for years. It is a commonly held view – often repeated in the media – that commercial surrogate motherhood is illegal and that payment to a surrogate mother is a criminal offence. This is not the case.
Under the Surrogacy Arrangements Act (1985), it is not illegal for a couple to pay a surrogate to carry a baby for them and it is not illegal for the mother to accept payment. However, it is illegal for any other person to take or offer money in relation to surrogate motherhood.
Commercial surrogacy agencies are therefore illegal, as are the activities of individual commercial surrogacy agents. And such commercial deals will not be upheld by the courts. By the terms of the Surrogacy Arrangements Act and section 36(1) of the Human Fertilisation and Embryology Act (1990), no surrogacy arrangement of any sort is enforceable in law.
Benefits, ethics and expenses
Couples involved with a surrogate can apply to the courts to become the legal parents of the carried baby. The law stipulates that this should be granted only if no money or equivalent benefit other than “for expenses reasonably incurred” has been paid by the couple to the surrogate mother, unless authorised in advance by the court.
But the courts tend to get around this law by authorising payments that come to their attention after the surrogacy process is over. There is an understandable reluctance to do anything that might disrupt a new family unit, but it is unsatisfactory to have such a discrepancy between the letter and the operation of the law. It does not promote trust in or respect for either. Things need to change so that the law surrounding surrogacy and what actually happens in surrogacy situations are in alignment.
To deprive biological parents using a surrogate the legal status of parenthood because they have paid more than what is deemed “reasonably incurred expenses” would clearly be draconian, arbitrary and cruel. This stipulation should be repealed.
Is there any serious moral objection to commercial surrogacy agreements? Should we not legally enforce them? And why not also consider legalising the activities of commercial surrogacy agents and agencies? Those who believe that commercial surrogacy is unethical claim it exploits the surrogate mother, who is typically poorer than the would-be parents, who take advantage, and that it leads to the commodification of these babies. Neither argument is sound.
To exploit is not merely to take advantage of someone, but to do so in a deliberately wrongful way. For instance, it is coercive and exploitative if a mugger steals your watch. It is not coercive or exploitative if someone offers to buy a watch from you even if you are selling it because you are short of money. Desperation does not preclude the giving of valid consent.
Some particular commercial surrogate motherhood arrangements might be exploitative but they are not inherently so. For instance, it would be exploitation if a surrogate mother refused to hand over a child while also refusing to return the money she had been paid. Similarly, altruistic surrogate motherhood is not inherently exploitative but individual instances can be when, say, relatives or friends unfairly pressurise a woman. The legal enforceability of all surrogacy contracts might help to reduce the risk of such exploitation.
A baby should never be treated as a commodity but as a moral end in itself. Commercial surrogacy does not breach this moral principle. When money changes hands in commercial surrogacy arrangements, what is bought and sold are the services of the surrogate mother, and when they are legal, the services of the commercial surrogate motherhood agencies. It is not the babies that are bought and sold.
Commercial surrogate motherhood does not involve the purchase of parenthood any more than payment to a marriage agency for an introduction to a potential partner is the purchase of a spouse or a marriage. What matters here, crucially, is how people behave rather than how they become the parents of much-wanted babies.