Babies born by surrogate are held up as modern miracles, but is a lack of regulation driving women into exploitation?
Elton John and David Furnish have done it, and so have Paris Hilton, Kim Kardashian and Kanye West.
There’s a bloke from Essex who recently joined the club via an undisclosed overseas location and a 72-year-old Scotsman has just been recognised as the legitimate owner of an American one he bought back in 2020.
What we are talking about here is surrogacy: the incubation and effective purchase of babies after the careful selection of their component parts.
The global market – already worth almost $18 billion (£14 billion) – is projected to rise to $129bn by 2032, according to the research firm Global Market Insights, with anywhere between 5,000 and 20,000 babies incubated to order annually.
This covers the whole caboodle in which you can DIY things with a friend at one extreme, or go for the full Lamborghini treatment where, in some countries, an agent will help you shop around the globe for the finest sperm, eggs and wombs money can buy.
For those opting for the international pick and mix route, there are BOGOF deals (two implants for the price of one), the option of sex selection and a pay-as-you-go plan.
And that’s because you, the customer, are always right. As one agency, New Life Conceptual Limited, based in Lagos, Nigeria puts it: “…it takes four ingredients to make a baby: an egg, a sperm, a womb to grow in, and a family to go home to. You have the last ingredient, but you need a place for your baby to grow, and that’s why you’re here.”
Some companies even offer legal guarantees around defective foetuses that have to be aborted.
If you think I’m making this up, think again.
In the UK, where commercial surrogacy is banned but international imports are not, there are now between 400 and 500 new surrogate-incubated babies registered each year, while globally the business is more than doubling in value every two years.
Some call it a “miracle” and point to the invisible hand of the market creating a profitable multi-billion dollar industry in which everyone wins; a benign system of supply and demand the libertarian economist Leonard Read might have called I, Baby.
And while there is no suggestion that the multi-millionaire celebrities who have used surrogacy, like Elton John and the Kardashians, have exploited the surrogate mothers who bore their children, for others – including feminists like myself – the global surrogacy trade reeks of false entitlement.
It has been sanitised by the liberal “rights” agenda and the same self-serving logic that brands prostitutes “sex workers”. If it brings to mind a book or essay, it is Brave New World, Aldous Huxley’s dystopian novel about social engineering and evil hiding in plain sight.
To what extent, for example, is the lack of regulation around surrogacy driving impoverished women into unsafe and unconsented arrangements, as it once did so extensively with domestic and international adoption?
And what do we really know of all those hundreds of Brits now shopping for children around the world.
Can it really be right that you can effectively buy a baby overseas but raise it in Britain where commercial surrogacy is supposed to be banned?
Just as in the 1950s, ‘60s and ‘70s, when we thought of adoption as a favour to unsuitable mums whether they be “wayward” teens or impoverished Mexicans, surrogacy is being sanitised.
Delve into the subject on the Internet and you will find that almost everywhere you look, it’s celebrated. These babies, magicked into welcoming arms, are seemingly a modern miracle for childless couples of every stripe. TikTok is full of it.
Here in Blighty, we have only “ethical surrogacy”, says Surrogacy UK, a leading non-profit “providing a safe, supportive environment for surrogates, intended parents and families”.
Such organisations emphasise the benefits to infertile couples, and the “great gift” bestowed by women (aged 16 or older) who are happy to “altruistically” lend their womb to another for nine months.
Whilst such arrangements do work for some, there is no reliable data on what is really going on in the UK. This is because the sector is governed by a bizarre mish-mash of statute and common law, and because regulation, where it exists at all, is opaque.
Echoing the words of a Tarantino script, surrogacy is legal in the UK but not a hundred per cent legal.
It’s legal to enter into an agreement with a surrogate, it’s legal to pay her “reasonable expenses”, and, if you’re the owner of a womb, it’s legal to grow a child (made with your eggs or someone else’s) and give it away once it’s born.
But it’s illegal to advertise you are looking for a surrogate in the UK or solicit for business if you want to become a surrogate. It’s also an offence to arrange or negotiate a surrogacy arrangement as a “commercial enterprise”, but that doesn’t really matter because, get this: “reasonable expenses” can stretch beyond the average annual wage.
If money is still an obstacle, you can always rent a womb from a woman in a country like California, Cyprus or Greece where for-profit surrogacy is legal, before bringing the child back home to the UK.
Another oddity of the UK system is that, while it is a criminal offence to advertise surrogacy services, there are “some exemptions for not-for-profit organisations”. It is not clear how these agencies are selected but they are organisations that officials at the Department of Health and Social Care deem trustworthy. It is how agencies like Surrogacy UK and Brilliant Beginnings are able to proactively recruit and advertise a willing pool of surrogates in Britain.
“All our surrogates benefit from being a part of our thriving community and can enjoy a range of events and gifts along the way,” says the Brilliant Beginnings website. “Surrogate retreats” and “milestone gifts” such as chocolates, flowers and even bellybuds - speakers that allow mothers to play music to babies in the womb - are all part of the service.
Brilliant Beginnings says “expenses” payments to surrogate mothers in the UK typically range between £12,000 to £35,000. It is not known how well off the typical UK surrogate is in relation to the intended parents check, but there is potentially a stark economic divide.
“For surrogates who receive means-tested state benefits, it is important to be clear about whether benefits might be affected by any expenses received,” says the Best Beginnings website. “We would always recommend surrogates are upfront with their benefits office”.
Evidence for the benefits and harms of surrogacy in the UK are almost entirely anecdotal.
Disputes do occur but no one really knows their frequency or what they entail because they are heard in the secretive Family Court, which sits mainly in private and from which detailed reporting is banned.
An obvious problem in the UK, is that the flash point for disputes typically arises after the fact - that is, after a child has been born. This is the point at which the intended parents (or parent) must apply to the Court for a “transfer of legal parenthood” and, in most cases, will be the first time the state even becomes cognisant of the surrogacy arrangement.
An application for such a transfer can only be made with the surrogate’s consent but the decision hinges on what the Court considers to be in the best interests of the child, not the surrogate mother.
“The parental order process takes place after birth and involves the family court, and a court-appointed social worker,” says the DHSC website. “This provides a valuable safeguard for the best interests of the child”.
There is a growing recognition that the regulation of surrogacy in the UK is inadequate but the agencies who run it want legislative reforms that favour the would-be parents rather than the surrogate mothers.
They are especially exercised about the fact that written agreements between surrogates and intended parents are ultimately unenforceable in the UK courts.
Others, including myself, want the practice banned – as it is in many countries across the world. Miriam Cates, the former Conservative MP for Penistone and Stocksbridge, caused a storm in January when she said surrogacy was “just ethically not acceptable”.
“Of course adults have a strong desire to be parents, both men or women. Of course it’s a sadness if that’s unfulfilled for whatever reason – they can’t conceive, don’t have a partner, whatever it is.
“But to deliberately bring a child into the world in order to separate it from its mother at birth I think is just ethically not acceptable,” she said.
Alan White, chairman of Surrogacy UK, told a webinar hosted by the Royal College of Midwives in February that those of us who see the practice as unethical and exploitative were limiting choice and free will because we failed to properly understand the motivations of surrogate mothers.
“Surrogates don’t see themselves as mothers, they see themselves as extreme baby-sitters,” he said. “[They are] doing that wonderful thing of doing the part of having children women or gay men can’t do for themselves”.
To survive the psychological impact of giving away a child, there is little doubt that this sort of thinking helps.
As Helen Gibson, the founder of Surrogacy Concern points out, surrogates are encouraged to see themselves as a bystander – just the “the oven” or “the microwave”, as some describe themselves.
But this sort of psychological dissociation doesn’t always work, and perhaps seldom does.
I spoke to one UK woman who feels deep regret at her decision to enter into a surrogacy arrangement. Sandra, whose name I’ve changed, was 32 with two children of her own. She had escaped a violent husband, and was struggling to make ends meet.
A friend suggested she could make money by carrying a baby for an infertile couple. And, after approaching a UK agency she found via Facebook, she was told that in return for having the baby, she could enjoy “unlimited expenses, within reason”.
She was introduced to a gay male couple who wanted her to carry an implanted embryo, engineered with selected eggs to give them the best chance of a “tall, blonde child”. Sandra, by contrast, is short and dark.
The embryo transfer failed three times, and the IVF process made Sandra extremely sick. Eventually, the couple decided to go to California, but not before admonishing her for wasting “their time, and a lot of money.”
“I felt like a broodmare,” she told me.
If the UK surrogacy market is a classic British muddle, the global market is the wild west.
And because no UK Court or Home Office official can possibly check the provenance of all the elements that go to make up a child (the sperm, the eggs, the IVF, or, crucially, the free agency of the surrogate mother), anything goes for the unscrupulous.
Although most countries around the world still ban the practice, there are more than enough who don’t.
In Greece and various US states including California, Washington DC and Arkansas, commercial surrogacy is fully legal. In many other countries it is either unregulated or very lightly regulated, enabling the trade to flourish. Countries in this bracket include Brazil, Mexico, Colombia, the Czech Republic, Argentina, Guatemala, Iran, Kenya, Nigeria, the Philippines, Russia and Ukraine.
WFI Surrogacy, one of America’s biggest providers, offers its customers what it calls a “live birth guarantee” – the promise that a birth will occur once the process is underway.
“The high quality of our egg donors and surrogate mothers enables us to make this type of guarantee”, says WFI. “Our live birth guarantee programs are available for either: singleton or twins [or] one specimen source or two specimen sources”.
“All our surrogate mothers are medically and psychologically screened,” it adds.
This is Big Fertility, whose business model relies on the commodification of every aspect of pregnancy.
A healthy overall budget for a Brit using the US surrogacy route sits between £250,000 to £320,000, according to the UK agency Brilliant Beginnings.
Often freelance agents or “fixers” will shop around the world for their clients to increase choice and reduce costs. A surrogate mum in Los Angeles, California costs a whole lot more than one from rural Mexico, for example.
Denmark has long been prized for its sperm, its tall blond donors making the most of their viking heritage.
For eggs, there are also options galore – and all pushed with a good dose of fairy tale genetics.
Egg Donor number “241222_01” on the World Center of Baby website (motto: every person deserves to be a parent) conforms precisely to the modern notion of female beauty as defined by Instagram.
Weighing in at just 66kg, she’s also “an artistic soul with a flair for creativity”. If you would prefer a sporty one, just go for donor number 241222_02 – “an athletic enthusiast, deeply engaged in fitness and sports”.
Embryos can be made up from the customers chosen eggs and sperm in any number of IVF labs around the world. They are then frozen and shipped to wherever the chosen surrogate may be. Fixers facilitate the entire process, including the negotiation of complex legal agreements and the careful arbitrage of international and domestic laws and regulations.
The wording of commercial surrogacy contracts is telling, the text reflecting the economic disparity between carrier and client.
“If Gestational Carrier suffers a loss of her uterus as a result of the performance of her obligations under this Agreement, she shall receive $5,000.00 from Intended Parents”, stipulates one contract.
It continues: “If Intended Parents jointly request Gestational Carrier to terminate the pregnancy because of the Child’s medical condition(s), she will do so promptly. If Gestational Carrier refuses to terminate, Gestational Carrier will have materially breached this Agreement and Intended Parents’ obligations under this Agreement shall cease immediately”.
Natalia Gamble, a director at Brilliant Beginnings, says the agency made an active decision “to only facilitate people going to places that we felt were ethical, secure, and safe”.
Although Ms Gamble is adamant that her approach is ethical, she helps clients go to Nigeria, Cyprus, and Ukraine, where commercial surrogacy flourishes.
“We made the active decision at Brilliant Beginnings to only facilitate people going to places that we felt were ethical, secure, and safe – we have very much focused on the US, but through our law firm (NGA Law) we have helped people go into places like Nigeria, Cyprus, and Ukraine because our role is much more not to help them do it in the first place but to help them bring their children home and resolve all the legalities afterwards,” she said.
Northern Cyprus even allows sex selection, with several clinics there advertising the service on their websites.
“The cases that are happening in Nigeria or Cyprus where it’s very unregulated and there’s no legal framework are a very, very small percentage of the overall international surrogacy landscape,” she said.
“We do need to be very alert to the risks of exploitation and those risks are greatest in places where there is no legal framework regulating how surrogacy is run [...] but, it’s about not overinflating those risks when the majority of people are going to what you might call ‘good surrogacy destinations’.”
Ms Gamble is pushing for a change to UK law that would grant commissioning parent(s) legal rights to the child (embryo) at the point of conception.
“It’s in the best interest of the child,” she says. “If you speak to any surrogate mother they will say ‘Look, I am not the mother of this child, I’m always very clear that it’s someone else’s child that I’m carrying’ – no one wants the surrogate mother on the birth certificate, including her.”
But is that really true – are surrogate mothers really so detached?
I spoke to Liane, who said her own experience of surrogacy caused “a huge amount of grief and hurt”.
She described the market as being infected with a sort of “toxic positivity”.
She added: “It’s painted as a wonderful thing to do, a beautiful selfless act which can only bring joy when for me, I felt used, manipulated, and devastated”.
Ms Gibson of Surrogacy Concern says cases involving “coercion and regret” are not uncommon, even within the UK’s surrogacy model.
“Surrogacy prioritises the wants of the adults ahead of the needs of the child, and creates a societal sense of entitlement towards women’s bodies,” she said.
The practices of single men buying children abroad, white couples using black surrogate mothers, and the growing trend towards using cut price surrogacy destinations such as Mexico, Colombia, Kenya and Ghana are all on Surrogacy Concern’s radar.
Physical harms to surrogate mothers are real. Carrying a baby always involves serious risk but, for surrogates, those risks are often greatly magnified.
Linda Khan, an epidemiologist based in the departments of Paediatrics and Population Health at NYU, says surrogates run an “increased risks of all kinds of pregnancy complications, which lead to adverse outcomes for women and children”.
One factor, she says, is that the embryo is not biologically related to the woman and implanted via IVF. Another is that “many women are carrying multiples because it’s so expensive. They want two for the price of one”.
“Twinning is not safe, even when it occurs naturally. It is a huge burden on women’s bodies, it gets all the risks of complications sky-rocketing.”
Whilst it would be difficult (though not impossible) to ban or abolish surrogacy entirely – changing laws to ban the ‘womb traffickers’ as many campaigners refer to the brokers, should be a priority.
The marketing of surrogacy should also be made subject to tougher regulation, say some experts, although many others favour a blanket ban.
“Surrogacy is a trade that makes commodities of children, of embryos and of eggs, and reduces women to being seen as machines,” said Ms Gibson. “It should not masquerade as a progressive solution to the problem of infertility.”
Further, any legal protections introduced in the UK should be for the benefit of the surrogate mothers giving birth and the babies, rather than for the commissioning parents or agents, adds Ms Gibson. A commissioning parent should never have a legal right to remove a baby if a woman has changed her mind.
In March last year, experts from 75 countries signed the Casablanca Declaration, which calls for a global ban on all forms of surrogacy. And in April this year, an international conference was held in Rome with an aim to provide all States with a legal instrument banning the practice of surrogate motherhood.
Implicit within it is a rejection of the fanciful and dangerous notion that anyone, anywhere has an inalienable right to a child.
“The regulations of each country are not enough to stop human trafficking globally,” said Bernard Garcia Larrain, the Executive Director of the Casablanca Declaration for the Universal Abolition of Surrogacy.
“We need an international treaty to prohibit surrogacy because this is a global market that moves a lot of money and knows no borders,” he added.
