The NHS must pay for the hire of gestational surrogates in California in compensation for the loss of a woman’s fertility, the Supreme Court ruled this month.
The decision comes as a surprise, given that commercial surrogacy – like that practiced in California – is illegal in the UK. The law allows for women to be hired to carry a baby on an “altruistic” basis only – meaning that the woman must be an unpaid volunteer, beyond receiving reimbursement for expenses incurred. The ruling sets a precedent for taxpayer funds to be allocated for the provision of gestational surrogacy, circumventing legal restrictions that prevent paying for surrogacy services in the UK.
The case reveals the complex emotional and physical ramifications surrounding the practice of surrogacy. The patient, known as Patient XX, was rendered infertile via a malignancy that went undetected by Whittington Hospital NHS Trust. This was deemed medical negligence, resulting in infertility, thus inhibiting what she has called “one of the central ambitions” of her life – to become a mother.
At the High Court in 2017, Patient XX was awarded £580,000 in damages, including for fertility treatment, cryopreserving her eggs, and for the “pregnancy expenses” required for having children by surrogacy in the UK. Her further claim for the cost of women in Californian to act as surrogates was initially dismissed, given the illegality of the practice domestically.
The Supreme Court has now overturned this decision, almost doubling the payout in order to accommodate the service in the USA. California is commonly referred to as the “wild, wild west” of the fertility industry, where the rent of a woman’s womb can cost over $100,000. Unlike in the UK, parentage orders there can be granted before birth, thus restricting the surrogate mother’s ability to change her mind.
Patient XX joined the one in eight UK women who experience infertility. The legal justification for the provision of funds for surrogacy procurement rests on the determination that she would not have become infertile without the negligence of the hospital. While the inclination to compensate her for the loss of her fertility is understandable, no monetary award can ever recover it. The award, therefore, was granted specifically for the procurement of surrogacy services and not for general damages. This sets a dangerous precedent for potential commercial surrogacy in the UK.
The discourse on surrogacy often focuses on the rights of the intended mother. Nevertheless, restrictions on commercial surrogacy in the UK are designed to prevent exploitation of gestational surrogates and reduce any harm and other complications that arise in commercial surrogacy exchanges. The burden of risk falls most evidently on the surrogate. She is far more than simply the sum of her reproductive capabilities, but a human being requiring equal protection before the law.
Surrogate mothers are often asked to carry twins or triplets – increasing their risk of gestational diabetes and pre-eclampsia. The drug, Lupron, which is used to transfer embryos, has also been documented to put surrogate women at risk for increased intracranial hypertension. Even upon the healthy completion of a pregnancy, feelings of regret and emotional heartbreak can persist for the rest of her life. Many argue that it is inherently impossible to guarantee a carrier’s equality in light of such risks, thus rendering commercial surrogacy unethical. Indeed, this was the view of the Committee of Inquiry into Human Fertilisation and Embryology when the Surrogacy Arrangements Act was passed in 1985.
It is paramount that the UK upholds the current law as any industry predicated on the transactional renting of a woman’s body is to be met with suspicion. Generally, surrogacy contracts entrench the asymmetrical power dynamic of a wealthy couple commissioning a woman of comparative social and economic vulnerability. The greater her financial need, the more open she is likely to be to the pursuit of dangerous ventures.
Indeed, the international human rights discourse lends a cautionary admonition to potential legal changes in the UK. Only last year, the UN Special Rapporteur on the Sale and Exploitation of Children highlighted the third vulnerable party in surrogacy arrangements — the child, who is marketed as a commercial product. As the Rapporteur stated, “A child is not a good or service that the State can guarantee or provide, but rather a rights-bearing human being.” The transfer of babies across borders in exchange for money rings alarm bells under international legal provisions against human trafficking.
As part of ADF International’s advocacy team at the UN in Geneva, I had the opportunity to commend the Special Rapporteur for her report in a panel event on the sidelines to the 40th session of the Human Rights Council. I was privileged to sit next to Dr. Sheela Saravanan, an expert on this subject in the context of India. She responded to the Special Rapporteur by highlighting reasons why several Asian countries were closing their doors to the surrogacy industry through legal prohibition. She told of women confined in restrictive “surrogate homes” away from their families, contracts signed in languages that they didn’t understand, and forced abortions when babies were of an undesirable sex. Moreover, she spoke of the immense profit margins enjoyed by the commercial agents at the expense of vulnerable women and children.
If commercial surrogacy is exploitative for Indian women, it follows that it is also exploitative for women in western nations. The level of asymmetry in the power dynamic may be different but is not necessarily so. The fact a child is exchanged for money remains, as does the commodification of a woman’s body. The tacit endorsement of commercial surrogacy in this decision will no doubt be instrumentalised by those pushing for more surrogacy. This would have considerable implications for our understanding of authentic women’s equality. By continuing to protect women from exploitative commercial practice, the UK has the chance to establish a bright line in efforts to safeguard women’s rights in the largely uncharted territory of bioethical law.
Lois McLatchie, Legal Analyst (UN) for ADF International