WPUK submission to Law Commission consultation on surrogacy reform

WPUK submission to Law Commission consultation on surrogacy reform October 2019.

**UPDATE 29th March 2023. Law Commission publishes reform proposals. You can read their statement here.

 

WPUK is a grassroots feminist campaign which was formed by a group of women in the labour and trade union movement to uphold women’s sex-based rights and protections in the UK. Since September 2017, we have held 24 public meetings across the UK which have been attended  by over 3,500 people. You can read our latest blog, Women in Prison By Prof Jo Phoenix here.

Women face entrenched and endemic structural inequality. This is reflected, for example, in the high levels of sexual harassment and violence against women, the ‘gender’ pay gap and discrimination in the workplace. Women have been disproportionately impacted by a decade of austerity and therefore remain more vulnerable to economically exploitative practices as a means of survival.

Our manifesto, published in July 2019, makes a series of demands, including a woman’s right to exercise bodily autonomy. It is our view that parenthood is not a right. A compassionate public health care system may choose to support individuals suffering from infertility who seek to become parents by way of assisted reproductive methods. However, this should not be on the basis that parenthood is a right.

It is from this perspective that we approach our response to this consultation. We recognise that surrogacy is an immensely complex and controversial topic and any proposed reforms must address a range of legitimate concerns and stakeholders, not least the rights of the child and the surrogate mother.

We have a number of comments to make about the consultation. In summary:

• The consultation paper provides limited evidence to support the claim that reform is urgently needed. The provenance of the demands for reform is not made clear.
• The rights of the surrogate mother, which – alongside the rights of the child – should be paramount, are inadequately addressed.
• There is no evidence that the Law Commissions have made any meaningful attempt to gather the views of surrogate mothers, particularly those who have regretted the experience or withdrawn from a surrogacy arrangement.
• In formulating these proposed reforms, the Law Commissions have failed to consult with women’s groups or groups that campaign on issues relating to pregnancy and maternity.
• Contrary to the Nolan Principles, the consultation paper carries endorsements from groups who support and/or have lobbied for the reforms being proposed.
• The consultation process has not been conducted in a way that is accessible to many, particularly women from lower socio-economic backgrounds, or women whose first language is not English. Surrogate mothers or potential surrogate mothers are more likely to hail from these backgrounds.

We would be happy with meet with members of the Law Commissions to discuss any of the issues raised in this consultation response.

“A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world.”

 Mr Justice Baker, D v L (Surrogacy) [2012] EWHC 2631 (Fam)[1]

 The case for reform

The submission makes a number of sweeping, sometimes hyperbolic, statements about the pressing need for reform of legislation that relates to surrogacy. For example:

“It has therefore become a matter of concern that there are significant problems with the law.”

“Calls for reform, both nationally and internationally, are becoming louder and more urgent: in the House of Lords it has been said that ‘…we look to the future and to surrogacy in the UK being updated for the 21st century”, and that surrogacy “…cries out for attention by the Law Commission for inclusion in its imminent next programme of law reform’.”

“It is widely recognised that the law is in need of substantial reform.”

The evidence for these claims is not well made.  We are told that the Law Commission of England and Wales’ 13^th Programme of Law Reform conducted in 2016 received 343 submissions on the topic of surrogacy. It is claimed that “most stakeholders” support reform:

“We note the concerns of those stakeholders who felt that the current law was not in need of reform, or that reform was needed to either restrict, or completely ban surrogacy. We do not think that this position is tenable or achievable, and is not what most stakeholders, or Government, have said that they would want.”

However, it is impossible to make any assessment of this, because none of the submissions are in the public domain. This is not an open and transparent policymaking process in line with Nolan Principle[2] No.5 ‘Openness’.

The Scottish Law Commission’s 10^th Programme of Law Reform, on the other hand, received only four submissions[3] regarding surrogacy.

The drivers for change

We acknowledge that the process to obtain a parental order can often be unduly lengthy. However, the consultation paper does not propose measures that would enable that process to be shortened. Instead it proposes to shift the presumption of legal parenthood in favour of the intended parents, by according them legal parenthood from the moment of birth.

Despite what the consultation paper states, it is therefore hard not to conclude that a major driver for reform is the financial pressures faced by courts.

Whilst the surrogacy organisations cited in the paper are described as being non-profit-making, they do, nonetheless, stand to gain financially from any increase in the prevalence of surrogacy. All vested financial interests in surrogacy must be kept in mind when considering the provenance of demands for reform.

Organisations that support and, in some cases have actively lobbied for, the proposed reforms are quoted prominently in the executive summary accompanying the consultation paper. This runs counter to Nolan Principle[4] No.3 ‘Objectivity’.

Public attitudes

“The law has fallen behind changing social attitudes”

“society and attitudes around surrogacy differed greatly from today”

“Whilst we acknowledge that there is a lack of public attitudinal research in this area, the research that exists suggest that public attitudes to surrogacy also now stand in stark contrast to the prevailing hostile attitudes of the SAA 1985.”

The consultation paper cites a single opinion poll conducted by YouGov poll in 2014, with no comparator polls from previous years or decades. Nor does this stand-alone opinion poll provide any sense of the general public’s understanding of the complexities of modern surrogacy arrangements.

The experience of surrogate mothers

Pregnancy is an exceptionally vulnerable time in a woman’s life. The consultation states:

“it is important to keep in mind that any pregnancy and childbirth are far from being risk free. The decision of a woman to become a surrogate, therefore, represents a significant life decision that may have serious, and potentially damaging, consequences for her health, in the same way that any pregnancy may.”

Pregnancy and childbirth carry a lower risk of mortality for women than they did in the past. However, the consultation document is right to assert that pregnancy still carries a significant risk to life and health. Just under 10 in 100,000 pregnant women die in pregnancy or around childbirth.[5] This risk increases for BME mothers who are five times more likely to die in pregnancy, childbirth, or the year following childbirth. Older mothers are also more likely to die in childbirth. The risk more than doubles to 22 in every 100,000 women over the age of 40[6].

Childbirth carries many other risks to the mother, many of which may have lifelong consequences. For instance, third, or fourth degree tears, also known as an obstetric anal sphincter injury (OASI), can occur in 6 out of 100 births (6%) for first time mothers and less than 2 in 100 births (2%) of births for women who have had a vaginal birth before[7]. The incidence of OASI has been on the increase over the past decade. Postnatal depression affects 10 to 15 mothers in every 100 in the UK[8]. Pre-eclampsia is also common in the UK and can lead to life-threatening conditions such as stroke. Pre-eclampsia affects up to 6% of pregnancies in the UK. Severe pre-eclampsia develops in around 1-2% of UK pregnancies. It is worth noting that the risk of pre-eclampsia increases threefold in pregnancies where donor eggs have been used[9].

Even without the risk of health complications for the surrogate mother or the baby, the experience of being pregnant and giving birth is often challenging and frightening. A relationship of trust between the pregnant woman and the midwife is crucial. In relation to Paragraph 17.76 of the consultation document, it should be noted that midwives are trained to identify not only health issues but also mental health issues, and social issues such as poor quality housing, poverty and lack of nutrition, domestic violence, and trafficking throughout the care pathway.

As much as intended parents may wish to be involved in antenatal appointments, scans, and the actual birth (indeed, in some cases the surrogate may want this too), the midwife’s relationship and primary concern must be with her patient, the surrogate mother. This is an important opportunity for midwives to identify risk factors or safeguarding issues, including the possibility of coercion or undue pressure being placed on the surrogate mother by the intended parents.

WHO guidelines, which have been adopted by the Royal College of Obstetricians and Gynaecologists, state that “all care settings must protect and promote women’s privacy and dignity, respecting their human rights.[10]”

It is not uncommon for women to change their mind about who they wish to have present at the birth once they are in labour. The wishes of the intended parents should carry no more weight than the wishes of a partner or the surrogate’s parents who may have planned to be present but who the surrogate may decide she does not want to be present once she is in labour.

There are many circumstances in which it would be undesirable for the intended parents to be present when the surrogate mother is attending healthcare appointments. For instance, in cases where complications may mean there is a risk to the mother’s health or life if she continues with the pregnancy. For instance, it is not difficult to imagine a scenario where the mother may find it difficult to make choices which prioritise her own health and wellbeing if the intended parents are in the room with her, even if they do not actively put pressure on her to prioritise the welfare of the fetus. Or in a scenario where a scan reveals a fetal anomaly, the pregnant woman may feel unduly pressured to conform to the intended parents’ wishes regarding continuing or terminating the pregnancy if they are present in the room when the scan takes place.

At all times it should be remembered that the patient in this context is the surrogate mother and it is her relationship with healthcare professionals and her human rights, dignity, and bodily autonomy which are at stake. The wishes and desires of the intended parents are no more than wishes and desires. They must not take precedence over the wishes and desires of the pregnant woman or the professional requirements of the healthcare professionals charged with caring for her.

Research into the experience of surrogate mothers

The consultation document acknowledges the limited evidence base on the experience and impact of surrogacy on all those involved in the process. It cites one study carried out by the University of Cambridge’s Centre for Family Research. However, this study involved just 42 surrogacy arrangements and was confined to altruistic arrangements.

There is an acknowledgement “that research undertaken into relation to surrogates is limited with respect to the numbers involved”.

The document states that it believes failed surrogacy arrangements to be rare. However, it also states that it is impossible to know how many surrogacy cases there are in the UK, so it follows that it is impossible to know how many failed surrogacy arrangements there are.

Consultation with surrogate mothers

There is no evidence that the Law Commissions have made any meaningful attempt to seek and gather the views of surrogate mothers, particularly those who have withdrawn from surrogacy arrangements or regretted their decision to give up a baby. Nor is there any evidence that the Law Commissions have sought to engage meaningfully with organisations which campaign for women’s human rights in pregnancy and childbirth.

A response to a recent Freedom of Information request[11] from the Law Commission of England and Wales was vague about the number of surrogate mothers it had consulted prior to publication of the consultation paper:

“We had formal meetings with two women who had acted as surrogates prior to
publishing the consultation paper. We have spoken with other surrogates more informally, via the APPG on Surrogacy and attendance at the Surrogacy UK conference.”

“We did not meet specifically with mothers of newly born babies (as a group) but some of the surrogates to whom we spoke had recently given birth.”

The Commissions must be mindful of the fact that such women are unlikely to be represented in a cohesive constituency. Whereas intended parents are much more likely to be adequately represented by those organisations whose sole purpose is to enable surrogacy arrangements.

Socio-economic status of surrogate mothers

The consultation paper recognises that surrogate mothers are more likely to come from lower socio-economic backgrounds and intended parents from higher socio-economic backgrounds.

“There was near universal agreement among those to whom we spoke that the majority of surrogates tend to come from a lower socio-economic group than the intended parents.”

“it has also been acknowledged that surrogates are generally economically and socially less well off than intended parents.”

This power dynamic – acknowledged in the paper – cannot be underestimated, given the potential for exploitation. For this reason, we do not regard it as paternalistic for the law to be disproportionately protective of the surrogate mother.

The consultation process

The consultation paper runs to 500 pages. We suggest that this makes it much less accessible to many individuals whose views on this issue are valuable, for instance surrogate mothers or potential surrogate mothers whose first language is not English.

Consultation events around the UK were organised at times that were not suitable for those with young children or other family commitments, particularly those on low incomes.

No women’s groups or groups that campaign on pregnancy and maternity issues were consulted prior to publication of the consultation document.

One of our manifesto aims is to increase the representation of women – especially black and minority ethnic, working class, disabled, older, younger and lesbian women – in all walks of public life. One of our five demands is that all organisations, committees and politicians speaking on issues of material concern to women must demonstrate that they have widely consulted the women they represent and serve and that such consultation should inform their actions and policies.

We note that the five Commissioners who form the Law Commission of England and Wales are all male, as is the Chief Executive. Two of the five Commissioners on the Scottish Law Commission are male, as is the Chief Executive. Poor representation of women in public life is particularly troubling when considering legislation and policy that exclusively affects women. It is even more concerning when it affects women who are even less well represented in public life: namely, those from lower socio-economic backgrounds.

Woman’s Place UK, 8th October 2019

WPUK submission to Law Commission consultation on surrogacy reform. Notes:

[1] https://www.familylawweek.co.uk/site.aspx?i=ed101209

[2] https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life–2

[3] https://www.scotlawcom.gov.uk/law-reform/tenth-programme-of-law-reform-consultation/respondents-to-the-scottish-law-commissions-consultation-on-topics-for-inclusion-in-its-tenth-programme-of-law-reform/

[4] https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life–2

[5] https://www.npeu.ox.ac.uk/mbrrace-uk/reports

[6] https://www.npeu.ox.ac.uk/downloads/files/mbrrace-uk/reports/MBRRACE-UK%20Maternal%20Report%202018%20-%20Web%20Version.pdf

[7] Thiagamoorthy et al, 2014

[8] Woody CA, Ferrari A, Siskind D, Whiteford H, Harris M.  A systematic review and meta-regression of the prevalence and incidence of perinatal depression. J Affect Disord. 2017; 219: 86-92.

[9] https://www.telegraph.co.uk/news/health/news/10936458/Risks-of-donor-egg-pregnancies-revealed.html

[10] World Health Organization. Respectful maternity care: the universal rights of childbearing women. Washington DC: WHO, 2012

[11] https://www.whatdotheyknow.com/request/public_consultation_on_proposed#incoming-1442299