Barend Vlaardingerbroek: Full or partial? – Getting to grips with surrogacy

2016 will hopefully see some movement in the law relating to surrogacy. There is now a review of surrogacy law in the UK, and a conference to thrash the issue out at international level is also mooted.

Surrogacy law varies enormously from place to place. Head-in-the-sand English law continues to insist that the woman who gives birth to a child “and no other woman” is the mother, and if the surrogate is married, her husband goes on the birth certificate as the father!

Some European countries enter the names of commissioning couples on the birth certificate, but the UK authorities don’t accept that and a couple who enlisted the services of a surrogate in, say, Moldova have to go through adoption procedures to secure their own kid. Crazy!

The recruitment of surrogates in developing countries has received a lot of attention of late, but much surrogacy occurs closer to home and it is not always ‘commercial’. Sisters, cousins, close friends – even mothers – have borne children for women unable to bear their own. The issue polarises public opinion, and many have strong views about it one way or the other.

Objections tend to be based on arguments concerning women’s dignity in relation to the use of their bodies and how that is eroded by turning them into incubators for other people’s offspring. Much of this line of argument emanates from Western upper-middle-class women who appear to be unable to empathise with poorer women in both developing countries and their own societies who choose surrogacy over the drudgery of menial labour for low wages. The argument loses it force completely in the context of altruistic arrangements such as a sister or a close friend carrying a baby for a woman unable to carry her own. And it shoots itself in the foot, for if a woman indeed has sovereign rights over her own body, that includes the right to rent out her uterus.

What surprises me somewhat is that most commentators, including those who ought to know better, continue to tar all surrogacy with the same brush. When we do get serious about this issue, I propose that we make a distinction between full and partial surrogacy.

We’ll begin with partial surrogacy. This involves the surrogate’s egg-cell being fertilised by the commissioning husband’s sperm. The surrogate is the child’s mother in the genetic sense – the child is as closely related to her as a child produced between her and her own spouse or boyfriend. One way of putting it is that partial surrogacy amounts to sperm donation with a prior agreement that the child will be surrendered to the donor. Herein lies one of my problems with the procedure, for if we bypass the specimen bottle and bits of plastic tubing and effect the sperm transfer using the time-honoured method, the result is exactly the same but it’s not considered surrogacy any more. There is also the irony that a sperm donor outside the context of surrogacy is explicitly not the father of the resultant child in law (unless, as my law lecture notes coyly put it, the insemination involved a ‘fresh donation’).

Another of my problems with partial surrogacy is that when the surrogate gives up what is indeed her baby to a commissioning couple in the context of a commercial arrangement, she is in effect ‘selling’ her child – the dodge that she is being paid not for the child but for the discomforts of pregnancy doesn’t convince me at all. Now correct me if I’m wrong, but I thought you weren’t allowed to sell children. Conversely, if she changes her mind and refuses to give the child up to the commissioning couple, she is simply holding on to what is, after all, her own child. And there is surely no civilised law that would take it from her by force.

Homosexual couples too can and do make use of surrogacy services (male couples, as female couples can usually have a child by sperm donation). This is necessarily of the ‘partial’ kind as there is no way that both same-sex partners can be genetic parents of the same child.

That brings us to full surrogacy. This involves creating an embryo using the commissioning couple’s egg-cell and sperm and placing it in the surrogate’s womb (more than one embryo is usually prepared). Any ensuing child is genetically unrelated to the surrogate. When she hands the baby over, she is in fact ‘returning’ the child to its parents. She has, or should have, no case if she changes her mind and says “It’s mine” because in [genetic] reality it is not.

Let me write this in bold: it is only full surrogacy that can deliver a baby that both commissioning partners can claim as their own. I put it to you that this makes the two ‘surrogacies’ fundamentally different, and I believe that this should be reflected in law. There is already a de facto legal difference: because full surrogacy is much trickier from a technical perspective than is partial surrogacy, there is some regulation over it in countries where regulatory control exists over in vitro fertilisation, while partial surrogacy is just about unregulated.

To the fully informed mind, it’s not a simple matter of ‘surrogacy vs. no surrogacy’ – unless, of course, one adopts the blanket position that all surrogacy should be banned or that all surrogacy should be allowed. But both of these positions treat surrogacy as a single entity, which is an oversimplification.

My personal position is ‘yes’ to full and ‘no’ to partial surrogacy. If the object of surrogacy is to produce a child for a married couple, partial surrogacy fails the test of legitimacy because it does not do so – it produces a child that ‘belongs’ (in the genetic sense) to only one of them. Full surrogacy, on the other hand, meets this requirement. Full surrogacy is moreover the only way in which some couples can have a child of their own – such as where they both produce gametes but the woman is unable to conceive. The right “to marry and found a family” is firmly established in international human rights law and, to labour the point, full surrogacy is the only way in which some couples can attain the latter aspect of this compound right. So let them.

As for the surrogate, her rights need to be fully outlined in statute and enforced by the courts when necessary – but she should have no claim whatsoever on the child she bears. Where surrogacy is partial, this provision is highly problematic. Where it is full, however, that caveat should slide in painlessly – once the law catches up with junior high school biology and defines parenthood solely in genetic terms.

Now, let fully informed discussion begin.

Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is at the American University of Beirut and is a regular commentator on social and political issues. Feedback welcome at bv00@aub.edu.lb.