Surrogacy rules are outdated and heartless
Before the Scottish philosopher Adam Smith wrote The Wealth of Nations, he authored another book that's far less well known. In The Theory of Moral Sentiments, Smith argues that we humans have a natural gift for putting ourselves in other people's shoes and that this hardwired empathy helps shape our ethics.
That idea feels right to me so, if I may, I'd like to tap into your sympathy by asking you to picture yourself in the following situation. Imagine you're a man whose wife was diagnosed with ovarian cancer a few years ago. Doctors were able to save her life by removing her womb and blasting her with radiation, but that treatment means she'll never carry a child.
Before the gruelling medical interventions began, your wife's eggs were frozen — so now the disease is in remission, you have the chance to have the family you've dreamt of, but you'll have to go down the surrogacy route where someone else compassionately carries your baby for you.
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It takes a long time but you eventually find a surrogate via Facebook — a 33-year-old mum of four. An IVF clinic mixes your sperm with your partner's egg and implants the embryo into the surrogate's womb. After an agonising wait, you get a positive result on the pregnancy test.
You're with your surrogate when you discover you're going to be a father for the first time, and you're at her side during the ultrasound scans as you see your baby growing. Finally the delivery date arrives and, when your daughter is born, you cradle her in your arms, convinced you'll never love anything, or anyone, this much again.
But within hours of the birth — out of the blue — the surrogate tells you she has changed her mind and wants to keep your infant. Soon after, she leaves the hospital with your child and, eight agonising months later, your case is finally heard by a judge who rules that the surrogate is allowed to keep your baby. For ever.
Can you imagine the devastation you'd feel if this happened to you?
Shockingly, this nightmarish scenario — a surrogate being allowed to keep a child that is 100 per cent genetically yours — can happen in the UK because of a statutory framework rushed in by Margaret Thatcher's government in 1985. That year, a mother named Kim Cotton had carried an embryo for a couple who couldn't have a baby themselves. Surrogacy was a novel concept at the time, so this was big news. Cotton explained to the press that she was happy to be able to help people in need — it was an act of compassion.
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Reactionaries in Thatcher's Britain saw things differently and legislation was hastily passed that made surrogacy between consenting adults extraordinarily difficult. According to these antiquated rules, in Britain the surrogate is always the legal parent and the biological parents have to go through a long and uncertain judicial process to effectively 'adopt' their own offspring.
If the newborn ends up in intensive care after birth or needs clinical treatment of any kind, the genetic parents have no formal say about what should happen. Our country's leading surrogacy lawyer Natalie Gamble aptly describes this as 'the final indignity'. As she puts it: 'After struggling so hard to have a much-loved child, the parents are then legal strangers to their baby at birth.'
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The negative consequences don't stop there. Under our outmoded regulations the views of surrogates are disregarded; they're not allowed to decide that the intended parents should be the lawful guardians; only the courts can make that call. This also creates complications for the surrogate's spouse, who is forced to assume legal parenthood and financial responsibility for a child that isn't theirs.
Sadly, youngsters suffer as well. In Gamble's words, babies born via a gestational carrier are 'born into a legal black hole because UK law treats them as the children of the wrong person'.
Small wonder that the majority of Brits who have to go down this route end up going overseas, in particular to progressive American states such as California. There, modern regulations mean surrogates have to pass rigorous medical, psychological and financial screening tests. And critically, in these US states, the courts decide at the start of the surrogacy journey who will be named as the parents, which minimises the risk of confusion or complications later down the line.
This certainty is good for everyone and ensures that genetic parents can be treated as the rightful guardians from day one. This means they don't have to go through a stressful adoption-type application after the birth or worry that they won't be able to make hospital decisions on behalf of their son or daughter.
We need a similarly commonsense approach here and, luckily, in recent years we've seen thoughtful and practical reform proposals put forward by the Law Commission of England and Wales, as well as the all-party parliamentary group on surrogacy. It would be a credit to Keir Starmer's government to follow these recommendations and overhaul our regressive laws, after successive Tory administrations timidly failed to do so.
Of course, surrogacy only affects a tiny number (about 600 British babies are born via surrogacy a year), so a cynical political strategist might call this a 'third-term priority', which is Westminster-speak for 'no bloody way'. But basic fairness demands action is taken. As Adam Smith would say, we should trust that human sympathy means that the British public will be supportive, even if they're lucky enough never to have fertility issues themselves.
Here's hoping our prime minister feels the same way.
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