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Surrogacy is nothing new. It is as old as the book of Genesis and the arrangement cooked up between Abraham, Sarah and her maid-servant Hagar – though arrangement is hardly the right word given how little choice Hagar had in the matter. Whatever we call it, the whole thing went badly wrong with Sarah resenting the fertility of her exploited slave and then doubly resenting Hagar and her child Ishmael when Sarah herself eventually fell pregnant (in her 80s) and gave birth to Isaac, the apple of her eye. Sarah eventually persuaded Abraham to cast slave and baby Ishmael into the desert. They just about survived with Ishmael, according to tradition, becoming the father of the Arab people, and Isaac, the first born of the Jewish people. It’s a story often used to describe the origins of an ancient conflict.
A surrogate can, of course, bring great joy to a couple who cannot themselves have children. But as technology has replaced miracle as the means by which non-traditional family arrangements can be achieved, we are increasingly faced with a whole range of complex moral questions that extend beyond our familiar moral maps.
In the UK it works like this: the surrogate mother may not have contributed any genetic material to the child she is carrying, but she is there on the birth certificate, along with her husband or civil partner. In legal terms, these are the child’s parents. In the UK at least, the rights of the tummy-mummy have priority over that of the commissioning, would-be parents. So, the surrogate mother cannot be forced into giving up the child if she bonds with it and changes her mind. Neither can she be forced into having a termination. Any agreements made to the contrary are not legally binding. Rights and responsibilities lie with the surrogate.
After the birth, the parentage of the child can be transferred in a way similar to that of adoption. This can take time – up to nine months – and can feel to all parties like something of a legal limbo. And if, at any stage, the commissioning family change their mind then the surrogate mother is left holding the baby. This is just as much true if the reason for that rejection is that the child is going to have a disability – as with the commissioning mother who refused to be in receipt of a “fucking dribbling cabbage”. This is obviously morally horrendous: but the fact that the rights stay with the woman who is pregnant keeps faith with the moral instinct that the right to choose remains with the woman in whose body the baby is growing. However, the fact that the surrogate keeps the rights does not mean that she bears all the responsibility.
Elsewhere, in California for example, the rights of the commissioning parents carry greater weight. This is partly because, in the US, commercial surrogacy is legal and thus sucks in the whole language of consumer rights that generally protects the buyer over the seller. Objections to this form of family building are many and various: from feminists who argue that womb-renting is a further objectification of women, to those who worry that it treats the child as some sort of commercial product, and encourages the idea that a foetus with potential disabilities can be seen as a faulty product that can be returned to the manufacturer.
And elsewhere in the world, in places such as India, unregulated commercial surrogacy provides ample opportunity for exploitation of both the often economically vulnerable surrogate mother and the legally unprotected commissioning parents. There may be problems with the UK law, but the fact that it emphasises the protection of the Hagars of this world is surely the correct way round.
Twitter: @giles_fraser
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