6 April 2023

Signing away motherhood: why changing the surrogacy law is a step too far


Last week, the Law Commission published a set of recommendations for reforming the law surrounding surrogacy in the UK. The most striking of these is that the intended parents of a baby born through surrogacy should be the legal parents from the moment of birth. Currently the woman who gives birth is always by default the legal mother, unless and until a court order is obtained to hand over parental responsibility. The Commission also wants to scrap the requirement that at least one of the intended parents is a genetic parent of the baby.

A couple of other recommendations add what would seem to be unobjectionable caveats, such as counselling for all parties before any agreement is entered into, and the creation of a register so children born through surrogacy can learn the details of their parentage, if desired, when they grow up.

The Law Commission argues that these are long overdue, common-sense reforms, since the existing law is both ‘outdated’ and ‘cumbersome’. But the recommendations are far from a simple update. They would radically change the legal conception of parenthood in a way that has the potential to affect not just surrogate pregnancies, but the way all mother-child relationships are viewed.

Currently, the law recognises that a woman who gives birth to a baby is always that child’s mother, even if the two are not genetically related (i.e. she is acting as a gestational surrogate). This relationship could in fact be considered the ‘default’ or ‘primary’ parental relationship of any baby born in the UK. Indeed, newborns are typically given a hospital wristband labelling them ‘Baby [Mother’s surname]’: even though most will later go by their father’s surname, in the first hours after birth the question of whose body they just came out of is rightly assumed to be at the forefront of their identity. Fathers, by contrast, are recognised as such via their relationship to a child’s mother: men are listed as fathers on birth certificates if they are married to the mother; if she names him as the father; or if he makes his own application to be added.

These recommendations would see the fact of pregnancy severed from recognition of parenthood, so that pregnancy becomes no longer a relationship between a mother and baby but instead a disembodied service that women provide, interchangeably, for either their own families or for strangers.

This gives rise to the bizarre situation where a woman can give birth to a child to which, if she is a ‘traditional’ rather than ‘gestational’ surrogate, she may also be genetically related; she may therefore be fully in every possible sense the child’s mother, but not recognised as such legally.

A child might even be declared legally motherless from birth (despite having a mother) if the intended parent is a single man, who may not even be the child’s genetic father. The Law Commission’s report apparently sees nothing wrong with this state of affairs.

There is a clear parallel between these recommendations and recent proposals to reform the Gender Recognition Act. Changes that would have allowed people to ‘self identify’ as the opposite sex, or as neither male nor female, were similarly promoted as the obvious thing for progressives to support – just a simple little bit of paperwork clearing away outdated and pointless rules that were cluttering up the place, preventing people from getting on with their lives.

Political parties eagerly signed up to support this reform, seeing it as an easy way to gain progressive cred without having to spend money. However, things were not as simple as they seemed. In England and Wales, the Conservatives shelved the plan after it proved wildly unpopular once the public got wind of it. In Scotland, the SNP were forced to make a humiliating U-turn after the true costs of the proposal – namely, two widely publicised cases of male rapists immediately ‘self identifying’ as women and being placed in women’s prisons – became too obvious to ignore.

In Feminism Against Progress, Mary Harrington argues that modern technologies, combined with market forces, are dissolving the structured fabric of family and society, breaking us down into interchangeable units and monetising the remains. Something similar is being attempted with both of these proposed reforms: pre-existing norms that recognise the salience of our relationships to one another are treated as a natural resource to be mined for political capital. In the case of gender recognition, it’s the idea that males and females are different, and you can’t change from one to the other just by declaring it to be so; for surrogacy, it’s that a mother, who creates a child out of her own flesh and blood, is more than just a special kind of babysitter.

Signing away these norms is seen as a cost-free way to help those who wish to be the opposite sex, or wish to have a baby but are unable to. But cultural norms exist for a reason, and dismantling them is not cost-free. The costs are borne by the women prisoners who find themselves locked up with rapists, and they will be borne by mothers and babies who undergo the trauma of separation for the benefit of others. Politicians should not be seduced by the promise of doing a good deed for free by giving away what is not theirs to give.

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Ellen Pasternack is a writer and researcher.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.