Event Review: Motherhood All Change - Surrogacy Revisited

Motherhood All Change: Surrogacy Revisited Organised by the University of Manchester Chancellors Hotel and Conference Centre, Chancellors Way, Moseley Road, Fallowfield, Manchester M14 6ZT Friday 7 June 2013

'The Human Body, its Scope, Limits and Future' is a Wellcome Trust-funded strategic programme led by Professor John Harris and colleagues at Manchester University's Institute for Science, Ethics and Innovation, in collaboration with Professor Sarah Cunningham-Burley at the University of Edinburgh. The project is designed to contrast and combine philosophical, legal and sociological research in five interlinked areas: human biomaterials, genethics, reproduction, enhancement and methods in bioethics.

Part of the 'reproduction' strand, the 'Motherhood all change' surrogacy study-day was a chance to (re)discover hot topics in surrogacy and engage in some collective re-imagining of the ethical and legal problems it poses. As the recent flurry of surrogacy-related activity in the courts, the news and even on Coronation Street shows, surrogacy is 'back' (if it ever went away).

The purpose of this study day was therefore to collectively identify current issues in surrogacy and its regulation, including surveying perceptions of its incidence, whether its use has increased or, if not, why more cases suddenly seem to be reaching the courts. In this respect, the participants also considered whether any 'new' problems are emerging.

The day was introduced and overseen by Professor Margaret Brazier. A big name in surrogacy, she headed the Government's 1997 inquiry looking at surrogacy in the light of concerns (mainly) that increasing sums of money were changing hands in surrogacy arrangements. The resulting 1998 'Brazier Report' said 'expenses' payments were increasing and recommended that the rules on payments and other aspects of surrogacy be tightened.

Alongside Sally Sheldon, I have documented elsewhere the inadequacy of the response to the Report's recommendations (as well as a critique of some of them), none of which have ever been formally adopted, despite the relatively easy opportunity to do so as part of the 2008 Human Fertilisation and Embryology Act. However, I think it safe to say that Professor Brazier would also not now regard that report as a suitable starting point for surrogacy re-regulation, given the changes that have occurred in the way many surrogacy arrangements are entered into since the late 1990s.

Different and sometimes worrying issues can now arise, particularly when something goes wrong, when cross-border arrangements are made, or when payments seem to be frequently and increasingly made at levels that appear to exceed what most people consider to be compensation for 'reasonable expenses' - and that was the starting point for this day.

Dr Danielle Griffiths started off the talks, asking about the incidence and acceptability of surrogacy, and what it means for definitions of motherhood and the family. She explained that surrogacy is now accepted' as a method of having children, though acknowledging that - unusually, perhaps - judicial attitudes towards surrogacy seemed to have relaxed more than wider social ones.

As Dr Griffiths acknowledged, any perception we do have about surrogacy is skewed and partial, given that we have no real idea how many arrangements are entered into annually (including DIY arrangements, which could be totally off the radar) and no ethnographic data about who uses surrogates or who surrogates are.

Regarding the motherhood/ family definition, she highlighted that different nations define this differently and that a real dichotomy exists in how surrogacy is viewed when it comes to the genetic relatedness (or otherwise) of the surrogate to the child. Via an exploration of different ways motherhood/ family could be defined, she concluded that an expanded (legal) view of what motherhood means would be both appropriate and desirable.

Dr Amel Aghrani continued to survey the surrogacy landscape, this time looking at payment and considering what (new) regulation of surrogacy should look like. She argued that a ban on payment would be neither effective nor sustainable in the light of the primacy of children's welfare (leading to increased retrospectively-authorised payments) and the growth of the Internet surrogacy industry. Israel's regulation was used as a comparator, which was interesting, but while it potentially has aspects we might like to include in new law here (for example pre-approved compensation for surrogates, often paid monthly with a balance at the end of the arrangement), we should remember it is culturally bounded and not flawless.

Professor Emily Jackson highlighted a big challenge facing regulation: for many people seeking fertility services, including surrogacy, the internet is their first resource. A whistle-stop tour through various surrogacy websites helped illustrate the problem, showing how and why both surrogacy 'tourism' and payments might be increasing.

As retrospectively-authorised payments seem ever more routine, Professor Jackson said that 'honesty' would be better, reflected in carefully thought-out prospective surrogacy legislation. However, she recognised that people may need incentives to operate within such a framework (rather than on a DIY basis), suggesting that automatic legal parenthood might fit the bill, though recognising the resulting questions about enforceability of arrangements and surrogates' rights to change their mind.

Lastly, Dr Julie McCandless and Katia Neofytou shared some findings from an EU study comparing surrogacy regulation across various member states. It was interesting to see the different approaches taken - though again this highlighted reasons why people, not just from the UK, might travel overseas to where they viewed the law being more favourable to them. The study showed little mutuality in approach between member states, other than the fact that children's lives with intended parents following surrogacy was in some way or another being facilitated. Greece was singled out for particular analysis, being the only European nation with prospective surrogacy legislation — and surprisingly therefore unconsidered in academic literature on surrogacy.

In the end, what the talks and the Q&A sessions between them showed is the often inevitable circularity of questions regarding surrogacy. If regulation offers something in the hope of protecting some parties (for example, preventing children from being stateless or parentless; surrogates or intending parents from exploitation or having their autonomy restricted) then it usually impacts negatively elsewhere.

As the discussions proved, many issues still arise from surrogacy and its regulation in relation to (at the very least) payments, advertising bans, access, overseas and DIY arrangements, enforceability, protections, legal parenthood and secrecy — but I'm not sure they'll ever all be solved. That said, I'm glad to have been part of this study day, both to know that there are lots of people still thinking about it and to have seen that, generally, a move to more facilitative and 'honest' regulation of surrogacy is desired.