Surrogacy now: reading the Law Commissions' report

The Law Commissions' report Building Families Through Surrogacy: a New Law, published on 29 March 2023, has been long-awaited and much commented upon in the weeks since its publication (see BioNews 1185). It promises to address the UK's 'outdated laws' on surrogacy, in turn providing protection for all parties involved in surrogacy agreements. The aim is to build a better regulatory environment, 'normalising' surrogacy as a route to family formation.

Surrogacy is an increasingly significant practice. The report notes that in 2021 there were 436 parental orders in England and Wales, and 15 in Scotland, a four-fold increase in ten years. International figures are more difficult to establish; it is clear, however, that the industry is growing. Global Market Insights puts the commercial market in surrogacy at $14 billion in 2022 and predicts that in the next decade this will grow to $129 billion.

The desire for better regulation is not misplaced. Currently, surrogacy in the UK is governed by the 1985 Surrogacy Arrangements Act in conjunction with the provisions of the Human Fertilisation and Embryology Acts of 1990 and 2008. Together these form a regulatory environment designed to dissuade all parties to a surrogacy agreement by inscribing maximum uncertainty for all involved.

Clearly, reform is necessary. Yet, not only do the Law Commissions' proposals not provide a plan for effective regulation of what is increasingly a global commercial market, they also contribute to what can only be called a reactionary form of familialism in the UK in which altruism is uniquely expected of women.

Limning a depoliticised space

Contemporary attitudes toward and opinions concerning surrogacy are complex and deeply divided. Organisations of lawyers, surrogacy charities and those seeking parenthood through surrogacy have been keen to stress the need for better regulation to facilitate the practice. But actors ranging from feminist groups and individual countries (eg France, Germany) to the European Parliament and the UN have voiced significant concerns, seeing surrogacy, and especially its intercountry and international dimensions as detrimental to the dignity of women and children with untold implications for our understanding of kinship.

Within the reproductive justice movement, surrogacy is viewed as a mechanism for deepening individualism and the selective pronatalism of developed states, and as contributing to the further stratification of already stratified global systems of reproduction. The Law Commissions' report not only pays scant attention to these concerns, it also contributes to creating a depoliticised space in which legislation on a contested issue is advanced.

Legitimising domestic, altruistic surrogacy, forestalling exploitation?

The Law Commissions privilege altruistic surrogacy. They promise to tighten control over payment of 'reasonable expenses' and recommend that those who pay more than the law permits should face civil penalties. Aside from 'modest gifts', the woman who acts as surrogate should be 'neither better nor worse off' as a result.

Natalie Gamble has commented on how this fails to address the reality of a global market related to reproductive services (see BioNews 1186). The new proposals are weak and laissez faire as regards the international practice of surrogacy and will do little to stop people from seeking surrogacy abroad. Indeed, as Gamble observes, the numbers of women prepared to act as surrogates in the UK may well decrease with tighter policing of payments of reasonable expenses. After all, when goods are in short supply in a competitive market, their price usually goes up. But the Law Commissions are not proposing a market in surrogacy services.

The report engages suggestively with the loaded concept of exploitation. It works a flexible, undefined conception of exploitation, as something that goes on in the context of 'international' markets in reproductive services and which can therefore be ruled out domestically by promoting nationally confined altruistic practices of surrogacy. What could be read as a lazy division between the domestic and international is in fact a subtle rhetorical move: by declaring 'our' reproductive practices to be altruistic it enables commerce, with its negative counterpart corruption, to be kept at bay whilst at the same time acceding to the need better to regulate surrogacy. The report rests upon and repeats the familiar trope of women's responsibility for fulfilling the desire of others.

Yet, the possibility of exploitation is not eradicated with the prohibition of commerce. Coercion, personal, familial, and social exists and its effects can be powerful.

There appears still to be a queasiness about surrogacy, such that the Law Commissions propose a regulatory regime in which surrogates can act altruistically, but not be recompensed for their work, and in which the UK will continue to ignore the burgeoning of an international market with its attendant legal and other problems.

The larger context: compulsory familialism (in which the labour of women is literally at issue)

The current proposals, in promoting the expectation of female altruism, underpin the agenda of a rather traditionally conceived familialism, including the underlying traditional kinship patterns that this implies. With this come closely prescribed roles for women. Beveridge's 'Social Insurance and Allied Services', published in 1942, amid war and with the aim of providing the blueprint for a better world to come, prescribed an important role for women, whose 'vital unpaid service' as 'housewives and mothers' had 'vital work to do in ensuring the adequate continuance of the British race and of British ideals in the world.'

The postwar welfare state that followed was one in which women gained important social citizenship rights not least by way of marriage and motherhood. This formula, which only ever met the reality of some women’s lives, has been coming adrift ever since. Despite women's increased labour market participation, they are still regarded as the primary caregivers of children and other dependents. Altruism is expected to be the 'natural' inclination of women, and the presumption of it underpins the expectation of altruistic surrogacy.

Today's compulsory familialism and the promotion of traditional kinship patterns ascribe to women the role of handmaids whose function is to serve as human 'resources' to be used in an 'altruistically' conceived domestic economy with traditional families at its core.