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Surrogacy consultation unacceptable

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open letter, Law Commissioners, surrogacy consultation, criticism of methodolgy, mother's health, child's rights ignored, pimping, grooming, abuseNo to womb rental: the risks are profound and include death.

A recent consultation on surrogacy was unacceptably and illegally biased towards the predetermined outcome of allowing the exploitation of women’s child bearing through financial coercion.

We cannot allow commercial surrogacy to go into law in the UK.

The consequences for vulnerable women and ‘bought and sold’ babies would be devastating.

A letter outlining the consultation’s failings has been written – this is a call for signatures. The letter runs:

Dear Law Commissioners

We are writing to express our concern about your joint consultation on proposals to open up commercial-style surrogacy in the UK. We believe both the proposals and the consultation are so flawed that they should be scrapped and restarted centring women’s and children’s human rights.

1. The consultation does not conform to accepted methodology or even the government’s own consultation guidelines

The consultation paper runs to 502 dense and technical pages and has 118 questions, most requiring open-ended answers about detailed technicalities, and many with multiple parts.

There are no simple and straightforward questions about the broad issues – such as whether you think paid surrogacy can ever be ethical, particularly while women’s poverty and inequality between the sexes are hurtling backwards.

Similarly there are no questions about whether you agree with the high-level proposals, such as the ‘new pathway’ as a whole. This is dishonest because in isolation many of the details appear sound.

For example, who could object to pre-conception medical checks on all the participants?

Our concern is that any agreement to the details may be taken as agreement with the ‘new pathway’ as a whole.

This is a major concern given there are no high-level questions and means that the results of the consultation are likely to misrepresent many people’s actual views.

2. Does not comply with the public sector equality duty (PSED)

Our understanding is that the law commissioners are obliged to comply with the PSED when carrying out public functions (such as drafting proposals for new legislation and policy and conducting a consultation on those proposals) but there is no evidence this has been done.

As surrogacy has a very different impact on women and children than on adult males, we believe the law commissioners are in breach of equality legislation.

3. Uses spurious and discredited ‘human rights’ justifications

The consultation paper uses the spurious and discredited ‘procreative liberty’ argument to justify a ‘human right’ to a child through surrogacy, while more or less ignoring the internationally accepted human rights of women and children to not be instrumentalised and commodified, and that third parties should not profit from that.

Similarly the consultation paper suggests that a woman’s right to choose what to do with her own body justifies a ‘human right’ to enter into a paid surrogacy arrangement as a birth mother.

This is the same argument that promoters of the sex industry use to justify prostitution and it is clearly absurd. It is always the most marginalised women with the fewest options who end up in prostitution and being used as birth mothers in surrogacy arrangements.

4. Does not conform to binding legal obligations under human rights treaties

The consultation paper admits that it is unlikely that commercial surrogacy could ever conform to CEDAW and then proceeds to ignore this.

Similarly it mentions obligations under the UNCRC and its first optional protocol and the recommendations of the UN Special Rapporteur on the sale and sexual exploitation of children, but then appears to engage smoke and mirrors to pretend the proposals do not conflict with these obligations when clearly they do.

Moreover the consultation paper (e.g. on page 85) suggests that obligations under ratified human rights conventions are not legally binding.

However, our understanding is that ratification of a human rights convention does place a legally binding obligation on the state to implement its terms.

This is of particular relevance when drawing up proposals for new legislation.

It seems to us that there is no possible justification for consulting on proposals that are in direct violation of the human rights conventions that the UK has ratified and yet this appears to be what the law commissioners have done.

5. No consideration of the medical risks

Surrogacy is a branch of reproductive medicine and any new laws should be informed by the medical processes and risks to the health, safety and wellbeing of the women who are the key participants in the process and the children who result.

There is no evidence, however, that the law commissioners consulted with medical experts, such as midwives, specialists in obstetrics and gynaecology, and child health, before drawing up their detailed proposals.

Apparently at one of the official consultation events, one of the law commissioners threw up his hands and said “we are not doctors, we are lawyers” and explained they hadn’t concerned themselves with medical matters.

How can this be justified when the risks are profound and include death?

One of the arguments for banning payment of organ harvesting is that it puts health professionals in the invidious position where any pretence at dispassionate care is compromised by the direct conflict of interests of the ‘donor’ and the receiver of the organ. This argument applies equally to egg donation and surrogacy and yet it is not considered at all.

6. No consideration of the linked and dangerous practice of egg harvesting

Modern surrogacy is predicated on a supply of eggs harvested from healthy young women. This is a dangerous process that carries serious health risks, including premature death, and there are major ethical issues involved – and yet the consultation maintains complete silence on this.

Nor is there any mention that pregnancies using a different woman’s eggs carry significant additional medical risks – even though this is now the norm in surrogacy arrangements.

7. No consideration of the psychological risks to the birth mother and baby

There is little long-term research on the outcomes of surrogacy to birth mothers and babies, because it is only relatively recently that it has been practiced on a large scale. However, there is extensive research on the outcomes of adoption, which has close parallels.

Studies of women who gave up babies for adoption find that they tend to suffer chronic grief for the rest of their lives and have heightened susceptibility to psychological problems, up to and including suicide.

Studies of adopted children have found that they are susceptible to similar difficulties – even when their adoptive parents were loving and their basic needs were well met. Many experts now consider these risks to be related to the separation of the mother and infant at or shortly after birth.

These risks were not considered or even mentioned, and nor were the consequences for society as a whole and the financial costs to the NHS and other public services that will inevitably be left to pick up the pieces.

8. No measures to prevent and criminalise coercing women into participation

It is well-known that women and girls are groomed and coerced into prostitution by partners who act as their pimp and take all or much of their earnings.

The same dynamics inevitably occur in relation to surrogacy when it is paid.

Pimping is a criminal offence – which, even though it is poorly enforced, sends out a clear message that it is wrong.

But the consultation paper does not recognise that if implemented, the proposals will inevitably be accompanied by attempts to coerce young women into acting as a ‘surrogate’ mother for someone else’s financial and material benefit and there is no provision for measures to address this.

How can this be justified, when there are reports in the press almost daily about unscrupulous people exploiting marginalised women’s eggs and babies for profit?

9. No serious consideration of the coercive forces of payments in the current environment of extreme inequality

The law commissioners propose removing all restrictions on advertising surrogacy in the UK. Young women are already being targeted with adverts for ‘donating’ their eggs and if these proposals are implemented, Facebook and Google will inevitably also present ads to young women suggesting that surrogacy can be a solution to their financial difficulties.

How can this be ethical at this time of worsening inequality?

A recent Guardian article reported that student accommodation now costs on average 73 per cent of the funding students can receive through loans and grants. As a result the majority of students need to find additional sources of income while studying.

This impacts young women more seriously than young men because they have fewer opportunities for decently paid casual work.

These economic inequalities, and the way girls are socialised to put other people’s needs ahead of their own, make women particularly vulnerable to being enticed into surrogacy arrangements when it’s not in their best interests.

If the proposals (including a minimum age of 18 and no requirement for having already had a child) go ahead, there is a very real risk that very young women will become ‘surrogate’ mothers under the coercion of poverty and that this will have a hugely detrimental impact on their life chances and happiness.

The consultation paper includes no consideration of this.

Instead it seems the primary concern is to facilitate and ease the acquisition of a baby by the commissioning ‘parents’ in clear breach of obligations under the PSED.

10. No consideration of the inherent inequality of the surrogacy relationship

Under the proposals for a ‘new pathway,’ legal parenthood will be conferred automatically on the commissioning ‘parents’ at the moment of birth with the birth mother having only a five week window (shorter in Scotland) from the moment of birth to register her objections. If she objects, the decision will be made by the courts, with the criteria favouring the commissioning ‘parents.’

This will have a chilling effect on the legal recognition of the unique nature of the mother-child bond, with potentially serious implications for all women and children down the line.

Yet there does not appear to have been consideration of any of this, nor of the gross inequality of the situation, should the birth mother find she simply cannot give the baby up.

She will have just gone through the upheaval of pregnancy and giving birth and is likely to be poor and with little legal or social support – while the commissioning ‘parents’ will have lawyers and agencies behind them who will have many financial and commercial reasons for wanting the arrangement to be legally sealed.

At no point does the consultation paper consider the plight of that young woman and her human rights, nor of the child’s human right to his or her birth mother and the well documented consequences of disrupting the continuity of care in the first three years of life.

11. No recognition that there are other options than surrogacy

We recognise the anguish of hankering for a child of one’s own that cannot be. However, we do not believe that surrogacy is a reasonable solution to this anguish.

It simply transfers the anguish onto others – usually a woman, who is marginalised in one way or another, and the child who is born of the arrangement.

There is no absolute human right to have all our wishes and dreams fulfilled, and disappointment and frustration are inevitable parts of human life.

We believe that there are many other ways of looking at the problem of childlessness and that at this time of imminent environmental catastrophe and deepening inequality and poverty, it is profoundly irresponsible to not do so.

12. Does not comply with the law commissioners’ own code of practice

The UK law commissioners’ code of practice states that responsibilities include “ensuring that the Commission properly takes account of the diverse needs of all those affected by its proposals.”

It should be stunningly obvious from the above that they have abjectly failed to do this in this project.

The consultation page on the Law Commission website states that the surrogacy project falls into the “Property, family and trust law” area of law and that the commissioner in charge is Professor Nicholas Hopkins, whose chief area of interest and expertise is “law as it applies to land.”

As women, the terrible irony is not lost on us that this project that is designed to make it easier for men in particular to gain access to children (as if they are private property) by instrumentalising women as wombs (as if they are public property), is being run by a man who has no known expertise in children’s welfare or women’s rights but who is instead an expert in the law of property.

13. Finally

We hope that the law commissioners and all involved have the integrity to acknowledge that putting forward these proposals without considering all the implications for women and children is unconscionable.

It seems to us that the law commissioners were captured by a well organised lobby of people with vested interests in opening up commercial-style surrogacy here in the UK.

We know that they can be very persuasive and persistent because some of them have trolled our social media accounts.

However, they must be seen for what they are – a lobby of individuals with a lot to gain personally by the opening up of commercial-style surrogacy and who are blind to the needs of others and the best interests of society as a whole.

Legislation and policy must always put the needs of the most vulnerable first and clearly the law commissioners have failed to do this.

We urge the law commissioners to return to the drawing board and start afresh under the leadership of a female expert in women’s and children’s human rights and a healthy degree of scepticism for the voices of those who stand to benefit commercially and materially.

When viewed dispassionately, we believe there is no possible conclusion except that a total ban on surrogacy is the only approach that conforms to human rights obligations.

Yours sincerely.

Please click here and scroll down to the end of the letter to add your signature.

CC Lord Chancellor, Shadow Lord Chancellor, Members of the APPG on Surrogacy

More information:
For a more in-depth discussion of our concerns, please see the following articles on our website NordicModelNow!:
The Law Commission’s Surrogacy Consultation: How to bamboozle through a dangerous new law

Why the UK surrogacy consultation should be abandoned

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