The law relating to surrogacy agreements is too restrictive and should be relaxed to allow for payments to surrogate mothers for providing such a service for couples who are unable to conceive. Critically discuss the merits of this statement.
It has been thirty years since the Warnock Committee1 first recommended the outlawing of commercial payments to surrogate mothers, yet the issue still remains a matter of much discussion. Nearly three decades might separate them, and yet the cases of Baby Cotton2 and Baby IJ3 have both prompted similar discussions over both the legal and ethical permissibility and wider effects of commercialised surrogacy. This indicates that despite a number of successive governments and a substantial body of case law that the complicated issue of commercial surrogacy has still not yet come to a satisfactory resolution. Additionally, the increasingly globalised nature of the world means that commercial surrogacy is becoming even more of a complex issue, as prospective parents obtain the services of surrogates from countries without the UK’s level of regulation.
Neither is commercial surrogacy a matter confined to the courtroom or lecture theatre – indeed, the practice of surrogacy as a whole was plunged once more into the limelight in August, as the (often lurid) details of the Baby Gammy case were disseminated by the world’s media, causing international outrage, a change in Thai law and a mass fundraising effort.4 This shows that such issues are still of interest to the public, and thus reiterates the need for a constant and ongoing evaluation of surrogacy law.
This essay will address the above question on two fronts: firstly, it will examine the risk of exploitation that putting surrogates at the mercy of the market will cause. Examining payment to surrogate mothers leads naturally to the issue of the commodification of the human body. The effects of this commodification will therefore be analysed. A particular emphasis will be placed on the historical context of the exploitation of women and women’s bodies. Secondly, it will discuss the balance between prohibition and regulation with regards to commercial surrogacy, arguing that a system of regulation would, in fact, reduce the possible harm of the practice. Having addressed these two areas it will be possible to draw a conclusion as to the merits of the above statement.
The Risk of Exploitation
The moment a service is commercialised, market forces begin to work upon it, and surrogacy is no exception. In particular we can examine commercial surrogacy through the lens of supply and demand. As it stands, a shortage of surrogates who are able to provide for the needs of commissioning couples5from the UK means that they are forced to either go abroad or are unable proceed with surrogacy arrangements at all.6
If commercial payments were permitted, it would undoubtedly increase the supply of willing surrogates, enabling many couples to fulfil their wishes of creating a (genetically related) family. The matter is more complicated than that however – it has been posited that turning surrogacy into a market reduces the surrogate to an object of use – of exploitation.7 Such practices are however nothing new – indeed the payment of an individual to provide a service is the basis of any capitalist society and surrogacy can be interpreted as simply another of these services. It might be possible to distinguish surrogacy as being of particular physical risk, and yet when examined alongside the plethora of physically risky employments available (for example boxing or lumber jacking), it emerges that surrogacy is by no means unique.8 If we take the assumption that a liberal society should strive for consistency in its moderation of behaviours, it stands that commercial surrogacy must be shown to be distinct in its exploitative potential before its illegality can be justified.
When we examine the surrogate as a service provider, another way of viewing the situation emerges – the child as a product. Anderson advances this view, stating that commercial surrogacy reduces the child to a “kind of commodity.”9 It can be countered that this ignores the reality of surrogacy situations – the fact that a surrogate is being commissioned at all implies that a couple are willing to undergo a lengthy, expensive and difficult process in order to be able to have a child, and that therefore this child will be important to them. Indeed, there is nothing to indicate that a child who has been conceived via such an arduous process is any less likely to be loved and cared for than a child who is born via more conventional circumstances. Additionally, a view that the surrogate-born child is a product indicates that the child is the end, rather than the means of the process, and therefore commercial surrogacy is consistent with the Kantian imperative (at least as far as the child is concerned.)10
A decision to legalise or otherwise deregulate commercial surrogacy would not take place in a social or historical vacuum. To the contrary, the commodification of women’s bodies has a long and complicated past. It can be argued that commercial surrogacy is simply another avenue by which women’s bodies can be economically exploited,11 forming part of a larger historical pattern of exploitation. Whilst this might be true, as Arneson points out the fact that a practice could lead to exploitation is not sufficient reason to ban that practice outright, and that indeed reducing the choices available to women is itself overly paternalistic and elitist.12
It is also argued that commercial surrogacy reinforces the idea of women’s economic role as an agent of reproduction.13 Whilst this might be true, the fact that surrogacy only forms a tiny percentage of UK births14 means that such an effect would, in practical terms, be extremely limited.
On a theoretical basis, Freeman argues15 that the harm of preventing an individual from controlling their own personal use of their reproductive abilities outweighs the harm that a shift in perception might cause. This is the core issue at stake when discussing any regulation – a potential or even fully realised harm might exist, but this must be balanced against the costs (both theoretical and practical) of prohibiting such a behaviour.
Regulation or Prohibition?
As explored above, several potential risks of commercial surrogacy do exist, even if subject to debate. The next question that exists is whether to continue with the status quo – prohibition, or to move towards a regulated market. This is not a simple issue – commercial surrogacy arrangements operate internationally, and regulation is not as simple as simply outright banning commercial surrogacy.
In usual cases of prohibition, for example drugs or liquor, punishment can take place quickly, and illicit products removed. When it comes to commercial surrogacy, the illicit ‘product’ is either a foetus or a child. Conventional models of prohibition would disallow the commissioning couple to adopt their child – thereby discouraging future couples from undertaking the same behaviour. Of course, this leaves the problem of a child who now lacks willing parents at all, or a parent who may not able to provide the child with a good standard of living. As a result, judges are often left with the uneasy decision of one of two routes. Firstly, the courts can retroactively authorise commercial surrogacy – effectively allowing a prohibited activity in all but the clearest-cut cases, as per Re: P-M, where a payment of almost double the expected reasonable expenses was made.
Secondly, judges can refuse to allow a parental order on grounds of commercial surrogacy. This leads to its own complexities. Considering that commercial surrogacy often involves cross-border arrangements due to a lack of foreign regulation (both of commercial surrogacy and the surrogacy process as a whole) all manner of peculiarities can arise – including cases where children are, at first, found to have no legal parentage at all, as in Re: X & Y.16 Few judges wish to place a child who has committed no wrong in such a situation, and are therefore much more likely to take the former route of retrospective authorisation – indeed, it has been indicated in Re: L (A Minor) that parental orders are to be granted in the case of illegal surrogacy arrangements, unless the “clearest case of the abuse of public policy” exists.17
Whilst it is admirable for the courts to place practical welfare above regulation, this has the effect of leaving the law relatively toothless when it comes to commercial surrogacy. This lack of effective regulation is further exposed when it is noted that the allowance for reasonable expense is often stretched to the point at which the line between reasonable expense and commercial enrichment is blurred.18
If it is to be asserted that commercial surrogacy is morally objectionable (as both Warnock and Brazier have concluded), it follows that it should be regulated against, else the regulation simply serves as an ineffective restriction of individual liberty whilst also tying up public resources in complicated court cases.19
Clearly, the situation is less than ideal. An alternative exists – a regulated (if ethically problematic) domestic market, rather than the current collection of uncontrolled foreign arrangements which exist. In order to reach this conclusion, it is necessary to make two assumptions.
Firstly, that a government should seek to reduce that which it believes to be a moral harm, regardless of where its borders end (without directly affecting other nations’ sovereignty or foreign individuals’ rights.)20
Secondly, that a reduction in the operating harm caused by a practice is preferable to having the law strictly follow a society’s collective morality (ie. a utilitarian approach over a deontological one.) In other words, that it is better to curb a practice, even if the means of doing so involve permitting that practice, at least in part.
As it stands, commercial surrogacy is still occurring without the knowledge of the authorities,21 and where discovered is usually authorised (even if not endorsed). This has created a system where individuals are likely to go abroad to avoid regulation (and thus increasing the likelihood of exploitation in jurisdictions with less of a concern for the protection of individuals.) Therefore, the current system of restriction can be said to manifest more harm than a system of regulated commercial surrogacy would.
As explored above, the balance between potential exploitation versus an undue restriction of rights is by no means clear-cut. Luckily, although there are strong arguments for either side, the aim of this essay is to examine the potential for harm should the law be relaxed. If, on balance, the benefits of reproductive autonomy outweigh the potential for unjust exploitation,22 then it follows that the law should be relaxed.
If we contend that commercial surrogacy is an exploitative practice, then, as argued above, a far more effective means of reducing this exploitation is to regulate rather than prohibit. In either case, the solution is regulation – ie. the relaxation of the law to allow commercial surrogacy.
It is of note that successive governments have failed to implement the recommendations of the Brazier committee when it comes to regulating commercial surrogacy, meaning that the courts are forced to be the arbiters of acceptable commercial surrogacy, whether they like it or not.23 This is by no means a unique situation in medical law – with issues from abortion through to end of life decision making giving rise to a plethora of cases in which the courts’ insistent requests for Parliamentary regulation fall upon deaf ears.
Whilst it would appear that HFEAs24 stance towards surrogacy as a whole is softening, it will require a strong and steady hand to steer the law towards an amicable resolution for the commercial surrogacy problem. Unfortunately, as is typical for many philosophically complicated issues, Parliament is remiss to address an issue which is unlikely the win them neither votes nor resources (or, it is to be noted, a large increase in measurable welfare.)
1Committee of Inquiry into Human Fertilisation and Embryology, Report of the Committee of Inquiry into Human Fertilisation and Embryology, (Cmnd 9314, 1984)
2Where a commercial payment for surrogacy from an America-based couple to a British woman was retroactively authorised by the courts. Re: A v C  FLR 445
3Where, in spite of the complexities of inter-jurisdictional surrogacy law, similar reasoning led to a retrospective authorisation of a commercial surrogacy arrangement. Re: X & Y (Foreign Surrogacy) EWHC 3030 (Fam)
4Australian Associated Press, ‘Baby Gammy: more than $240,000 raised to support surrogate baby’ (The Guardian 2014) australia-news/2014/sep/30/baby-gammy-more-than-240000-raised-to-support-surrogate-baby" rel="nofollow">click here to view
5The traditional parental order route requires a couple to apply, although single people can still apply to adopt the child. Emily Jackson, Medical Law: Texts, Cases and Materials (OUP 2013) 848
6Margaret Brazier, Alastair Campbell, Susan Golombok, ‘Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation’, (CM 4068, 1998) para 4.37
7Elizabeth Anderson, ‘Is women’s labour a commodity?’ (1990) 19 Philosophy and Public Affairs 71-92
8Shaun D Pattinson, Medical Law and Ethics, (Sweet & Maxwell 2014) 229
9Elizabeth Anderson, ‘Is women’s labour a commodity?’ (1990) 19 Philosophy and Public Affairs 71-92
10Emily Jackson, Medical Law: Texts, Cases and Materials (OUP 2013) 12
11Alan Wertheimer, ‘Exploitation and Commercial Surrogacy’ (1996) 74 Denver University Law Review 1215-29
12Richard J Arneson, ‘Commodification and Commercial Surgery’ (1992) 21 Philosophy & Public Affairs 132-164
13Janice G Raymond, ‘Reproductive Gifts and Gift Giving’ (1990) 20 The Hastings Center Report 7-11
14Emily Jackson, Medical Law: Texts, Cases and Materials (OUP 2013) 839
15Michael Freeman, ‘Does surrogacy have a future after Brazier?’ (1999) 7 Medical Law Review 1-20
16Re: X & Y (Foreign Surrogacy) EWHC 3030 (Fam)
17Re: L (A Minor) EWHC 3146 (Fam)
18Emily Jackson, Medical Law: Texts, Cases and Materials (OUP 2013) 847
19As per McFarlane J, the courts are an inappropriate place to deal with the complexities of surrogacy agreements.Re G (Surrogacy: Foreign Domicile)  EWHC 2814 (Fam)
20It is possible to argue that true belief in implementing a moral imperative does dictate foreign intervention, but it is not necessary to argue that for the sake of implementing sensible domestic policy.
21Making it, of course, very difficult to measure. We can however infer that if it turns up in the courts, then the practice is also taking place under the radar.
22As opposed to the everyday exploitation that we accept as part of a liberal capitalist society.
23Shaun D Pattinson, Medical Law and Ethics, (Sweet & Maxwell 2014) 303
24The Human Fertilisation and Embryology Authority