Surrogacy is becoming an increasingly popular and publicly celebrated means of childbirth. Lucy Lui, Jimmy Fallon, Kim & Kanye, Sarah Jessica Parker, Nicole Kidman, Elton John, Neil Patrick Harris and Ricky Martin have all had children via surrogates.
However, surrogacy has come with a complex array of challenging legal and ethical issues, that rarely make it into public discourse. In this article my aim is to briefly lay out the current medical and legal landscape of surrogacy in the UK, to go through some ethical questions raised by the practice, and then to end with some thoughts from the bible.
The Types of Surrogacy
There are several different permutations of surrogacy. A couple may choose to undergo IVF using their own gametes, and then have the embryo implanted into the uterus of a surrogate. This would produce a child that is genetically related to both intended parents (but not to the surrogate).
Alternatively, the surrogate can use an “insemination kit” to become pregnant with the intended father’s donated sperm, meaning that the child would be genetically related to the surrogate mother and intended father. This is sometimes called “traditional surrogacy”.
There is also the possibility of utilising third- and fourth-party gamete donation. Either or both of the gametes can come from donors unrelated to either the intended parents or the surrogate mother. The latter would lead to baby who is genetically unrelated to both their intended and surrogate parents.
The UK Law on Surrogacy
Surrogacy first became legal in the UK in 1985 under the Surrogacy and Arrangements Act. Since 2010, same-sex couples have also been able to become intended parents of surrogate-born children. However, UK law puts tight restrictions on surrogacy practices. It is currently not legal to “advertise or commercialise” surrogacy. It is thus illegal to pay someone to be one’s surrogate, except to cover “reasonable expenses”, and it is illegal to advertise surrogacy as a service.
When a child is born to a surrogate mother, the child’s automatic legal parent is the surrogate mother who birthed him/her (plus the surrogate’s spouse if there is one). The intended parents then have to apply for legal parenthood via adoption or parental order, in order for the legal parenthood to be transferred.
To unpack the different ethical issues around surrogacy, I am going to split the issue up into three parts
Issues around conception of the embryo
Issues around the surrogate pregnancy
Issues around the birth and life of the child
1. Issues Around the Conception of the Embryo
As mentioned above, most surrogate pregnancies receive the embryo from IVF (except in “traditional” surrogacy scenarios). There are some contentious ethical issues around the topic of IVF that are beyond the remit of this article. But by way of quick summation, firstly, IVF usually produces many “spare” embryos that are not implanted. These are either discarded, frozen or used for experimentation. However, some groups of people deem life to start at conception rather than birth, which logically would make the destruction of embryos morally tantamount to ending the life of a child. These are clearly similar issues raised during debates on abortion, which again are beyond the remit of this article.
Secondly, some groups see IVF as breaking the sacrosanct link between sex and procreation. Catholics traditionally use this argument to prohibit all forms of IVF, whilst Protestants traditionally deem IVF ethical only if done in the context of infertility within a marriage, without third-party donor gametes, and without the destruction of embryos.
2. Issues Around the Surrogate Pregnancy
The UK law prohibits the commercialisation of surrogacy, and for legitimate reasons. Around the world, in countries with less restrictive (or absent) surrogacy laws, there have been several notable cases of human right abuses of both surrogate mothers and surrogate-born children, for commercial gain. In 2015, a police raid in China uncovered a child-trafficking ring, where paid surrogate mothers were housed in squalor until they gave birth to their children, which were then sold for profit(1). The photographs that appeared in the press were horrifying.
The issue of commercialisation of surrogacy also opens up the broader ethical question on whether it is moral to commoditise the human body. The answer is not simple. In some circumstances, commoditisation of the body is seen as necessary, for example, in the employment of individuals based on their ability to do manual labour with their hands. It can even be seen as a heroic and altruistic, such as donating a kidney to save the life of a family member or friend. However, when it comes to people selling their bodies for sex such as in prostitution, there is some debate as to whether this ought to be seen as empowering or degrading, particularly to women.
So when it comes to surrogacy, which is it- necessary, heroic or degrading?
I don’t have an easy answer to that. However, I personally believe that the human body has immense intrinsic worth, and so I am uneasy about any act that risks objectifying and commoditising the body, especially for financial gain.
3. Issues Around the Birth and Life of the Child
One of the major reasons why surrogacy controversies have made it into the news is because of the question of parenthood. As mentioned above, the automatic legal parenthood is given to the surrogate mother who birthed the child (+/- their spouse), regardless of surrogacy arrangements. If the surrogate and intended parents then disagree on the future of the child, if can lead to some tricky and upsetting situations.
For example, in 2014 a Thai woman called Pattaramon Chanbua acted as the surrogate for an Australian couple. Chanbua gave birth to twins, and on birth it became apparent that one of the twins had Downs syndrome. The Australian couple chose to just take home the healthy daughter, leaving Chanbua with the son with Downs. Chanbua told the word’s news that she did not have the financial resources to raise another child. But after receiving around $215,000 from an online crowd-funding campaign, she then announced her resolve to raise the child as her own(2).
So who should be the automatic legal parent of a surrogate-born child? The birth-mother? The genetic parents? The intended parents? The state?
Again, there is no easy answer. At very least, I think there should be strong international legal protections for surrogate mothers, to avoid situations such as the Chanbua case. Also, in cases where the child is wanted neither by the intended nor surrogate parents, the child’s welfare must be paramount, and there arguably could be a place for the state to intervene.
When the surrogate-born child grows up, there is the additional question of the right to access information about one’s genetic parents. In April 2005, this question came into public debate, when the UK law changed so that anyone conceived with donated gametes had the right, once they reached 18, to request information about the gamete donor, from the Human Fertilisation and Embryology Authority. This led to a significant drop in sperm donation!
I can understand why the law was changed. Many people who could not access information about their genetic parents suffered from a painful sense of incomplete understanding of their personal identity. Our origins and identity cut to the core of who we are as humans, which can manifest in people going to extraordinary lengths to identify and locate their “true parents”.
But does this then threaten the identity and status of the parents who raised this child? Could parents who have utilised gamete donation feel betrayed by the children they raised, if the children start asking questions about their genetic identity? And where does that leave the genetic parents, such as a man who donated sperm 18 years ago and now gets a knock on the door from his biological son asking for information?
Again, there are no easy answers. But in these tough and confusing situations, I think my heart empathises most with the children involved and their desire for knowledge of their origins and genetic identity.
Before I round off this article, there is one further point I’d want to make. My medical ethics is rooted in an orthodox interpretation of the bible. And unusually for medical ethical issues, there are at least two mentions of surrogacy in the bible. In Genesis 16, Abraham and Sarah (then called Abram and Sarai) have a child through the surrogate of Hagar, Sarah’s servant. And then in Genesis 30, a similar story occurs when Jacob and Rachel have two sons through the surrogate of Bilhah, Rachel’s servant.
Here is the story of Abram, Sarai and Hagar, from Genesis 16-17:
Now Sarai, Abram’s wife, had borne him no children. But she had an Egyptian slave named Hagar; so she said to Abram, “The Lord has kept me from having children. Go, sleep with my slave; perhaps I can build a family through her.” Abram agreed to what Sarai said. So after Abram had been living in Canaan ten years, Sarai his wife took her Egyptian slave Hagar and gave her to her husband to be his wife. He slept with Hagar, and she conceived. … So Hagar bore Abram a son, and Abram gave the name Ishmael to the son she had borne. Abram was eighty-six years old when Hagar bore him Ishmael. … God also said to Abraham, “As for Sarai your wife, you are no longer to call her Sarai; her name will be Sarah. I will bless her and will surely give you a son by her. I will bless her so that she will be the mother of nations; kings of peoples will come from her.” Abraham fell facedown; he laughed and said to himself, “Will a son be born to a man a hundred years old? Will Sarah bear a child at the age of ninety?” And Abraham said to God, “If only Ishmael might live under your blessing!”. Then God said, “Yes, but your wife Sarah will bear you a son, and you will call him Isaac. I will establish my covenant with him as an everlasting covenant for his descendants after him.
There a couple of things this story has in common with the Jacob and Rachel story of Genesis 30. Firstly, both acts of surrogacy are born out of unhealthy motives. Sarai was driven by insufficient trust in God’s promise of an heir to Abram, and Rachel was driven by jealously of her sister Leah. And secondly, following the acts of surrogacy, God allows both Sarai and Rachel to conceive their own children “naturally”. Thus in both instances, the surrogate birth is painted as an undesirable act, whilst natural childbirth is the manifestation of God making good on His trust-worthy promises to Abram and Jacob.
So where does that leave us? Every sermon I have heard on Genesis 16 ends up with the application that we need to trust in the promises of God, and not try work in our own strength. I think that is a legitimate abstraction from the text. However, perhaps there is also a more immediate link between the story of Abram and Sarai, and modern infertility and the desire for surrogacy. Infertility can be devastatingly painful for individuals involved- a pain I can only begin to imagine. And the bible acknowledges the pain of infertility, as shown by the words and actions of Sarai and Rachel. But in a bizarre and mysterious way, infertility may end up being a suffering in which a Christian couple learns more about what it means to trust God with their circumstances and future. I wouldn’t use this in isolation to advise a Christian against surrogacy. But it is a reminder that God promises to work through all things, including our pain and heart-break, for the good of those who love Him(3).