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Surrogacy is an arrangement in which a woman, a surrogate mother, carries a child on behalf of another couple or individual without the intention of raising the child herself. It’s an alternative to traditional pregnancy for those who want a child but can’t carry one themselves: including same sex couples, single parents, and those who struggle with infertility or health issues. It’s been a source of controversy even before its legal tenure and a source of protest for numerous groups, from the feminist movement to the Catholic church. It’s important to weigh the benefits of surrogacy against its flaws and explore what needs to be changed about its legal status, if anything.
Traditional surrogacy, in which the surrogate is the biological mother, is believed to be as old as human civilization itself, with wealthy men in the ancient civilisations of Mesopotamia, Greece, and Rome hiring surrogates as a means to provide an heir when their wife was unable to procreate. One of the oldest documented examples of traditional surrogacy can be found in the Bible, where in the book of Genesis, Abraham’s wife Sarah who is unable to bear children of her own, convinces a slave to conceive a child with her husband so that she and Abraham can raise the child themselves. The concept of having children through an act of slave labour begins to hint at the ethical concerns debated today.
An alternative to traditional surrogacy is gestational surrogacy, made possible in the late 1970s, where in vitro fertilization is used to impregnate the surrogate with an embryo that is not hers. This was controversial at the time, as alternative family planning methods were considered unnatural or sacrilegious by the public, and this disapproval was only compounded by opinions on same-sex couples or single women’s access to family planning. To no surprise, the British public was outraged when Kim Cotton became the UK’s first surrogate mother in 1985, paid by a Swedish couple to have their baby for them. In response to this unrest, legislation on the issue was “rushed through Parliament as a reaction to media attention” in hopes that “restricting the arrangement of surrogacy would smother the practice before it developed,” according to, NGA Law, a fertility law firm.
Obviously, this attempt at smothering the practice did not work, but the legislation that tried to do so—the Surrogacy Arrangements Act of 1985—is still the foundation of surrogacy law. The act states that while surrogacy is technically legal in the UK, it cannot be done commercially, meaning you cannot pay a woman to carry a baby. The practice is still legal in its altruistic (non-paid) form, but surrogacy agreements cannot be enforced. In the eyes of UK law, the surrogate mother is the child’s legal guardian once it is born and although legal parenthood can then be transferred over to the intended parents, the surrogate is not required to do so, even if this transfer was agreed upon before the birth of the child.
The nature of these laws creates some difficulty. Altruistic surrogacy may be legal, but surrogacy agreements have no legal legitimacy in the UK. There’s no way to regulate the practice or prevent commercial surrogacy exchanges from happening, as there is no official record kept of any surrogate births. The vague nature of the UK’s surrogacy legislation and its lack of regulation could be purposeful, a way to appease those in protest of the practice while not upsetting those in favour, or possibly the result of rushed lawmaking yet to be resolved. Or perhaps most plainly, it is a symptom of having to legislate such a complex issue.
Alongside this lack of regulation lies a glaring loophole that almost invites commercialisation: although you cannot pay a surrogate directly, UK law says that you can cover the surrogate’s ‘reasonable expenses,’ a term with no given guidelines or specifications thereafter. The vague nature of ‘reasonable expenses’ leaves room to pay for a surrogate, even if not publicly or through direct monetary means. One could argue that a house or a car could be a reasonable expense. Theoretically, things like access to a work visa, private healthcare, or legal help could all be reasonable expenses. This leads us to one of the main ethical arguments against the practice of surrogacy: the exploitation of desperate women.
Similar to sex work, it could be argued that surrogacy is a ‘profession’ taken out of desperation rather than choice. Pregnancy is a physically taxing, sometimes dangerous thing to undergo. It’s not something you can clock out of or quit. If a woman had a chance at supporting herself through other means, why wouldn’t she? A popular feminist point of view is that commercial surrogacy is a form of “procreative labour” that hinders a woman’s freedom and autonomy. It’s an avenue for women in desperate situations to be exploited for their bodies as a means to gain access to things like money, immigration help, or healthcare as mentioned before. The criminalisation of commercial surrogacy is meant to protect against this kind of exploitation, however the “reasonable expenses” clause and lack of regulation found in UK surrogacy laws almost makes exploitation more inevitable.
The counterargument to this would be that surrogacy is a choice that capable adults should be able to make for themselves. Kim Cotton, the UK’s first commercial surrogate, claims that becoming a surrogate was her right and she saw it as a way to make money while making a positive impact on a family’s life, not something she had to do. After the overturning of Roe v. Wade and the loss of women’s reproductive rights that followed in the US, modern American feminism is largely focused on the issue of choice and reproductive autonomy. The ‘choice feminism’ viewpoint argues that surrogacy is a choice that a woman should be allowed to make and is therefore inherently feminist.
It’s true, surrogacy is a useful tool for those who can’t have their own children and it would be more readily available if a woman could be paid for their services as a surrogate. However, regardless of the differing viewpoints on the ethics of the practice, it should be taken into account how the legal status of surrogacy impacts how women and their bodies are seen in the eyes of the law. If commercial surrogacy were to be made completely legal, wombs would be legally recognised as commodities that can be bought and sold. Current laws are rarely enforced and barely criminalise commercial surrogacy, meaning that, while rare, it still occurs in the UK.
Surrogacy has a lot of merits in that it gives a chance of having kids to those who may not have had that chance otherwise. Even so, it’s undeniably ethically murky, and current UK laws don’t do enough to protect surrogates against exploitation. Even with reform to the legislation, it’s debatable as to whether exploitation can be completely avoided while the practice is legal in any form. Laws aside, surrogacy is argued to be anti-feminist in that it implies a woman’s body can be used as a means to an end. At the same time, forbidding a woman from being a surrogate would be encroaching on a woman’s right to bodily autonomy, so it could also be debated that a woman has a right to be a surrogate. It’s an incredibly complex issue, and the complexity only grows if you consider the differences in legality worldwide.
Edited by Shelby Sveiven
Image: Bianca van Dijk, 2023 // Pixabay
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