24 July 2017
ByAppeared in BioNews 910
As a supporter of surrogacy, I expected the television adaptation of The Handmaid's Tale to be uncomfortable viewing: Margaret Atwood's chilling dystopian novel is well known for being the ultimate warning against surrogacy. But I have come away each week thinking, when you separate fact from fiction, what a strong case the story makes for surrogacy with informed consent.
In the story, the fictional US Republic of Gilead is a totalitarian theocracy in which, after an epidemic of infertility, the few women who can bear children are made to become surrogates. Our hero Offred and the other 'handmaids' are deprived of even their names and forced (through servitude and rape) to carry children for the powerful.
For some feminist commentators, the novel showcases that all surrogacy is exploitation: the use of women's bodies as a means to an end, and the stealing of children from their mothers. But they are missing the point. The real message is not that surrogacy exploits women; it is that women should always have the right to choose the circumstances in which they conceive and carry children.
That is not to say that there are no ethical concerns about modern global surrogacy. Particularly in South East Asia, where surrogacy often involves poor women bearing children for Western couples in arms-length's arrangements, we are right to worry that surrogates are not given the information to make an informed choice, are not cared for well enough, and may feel the loss of babies they have no ongoing connection with. But we should be careful. It is wrong to presume that women in poor countries are not as capable of making a valid choice as Western women. In one case I dealt with, an Indian surrogate was proud of using surrogacy to get her family back on its feet after their business was destroyed by flood - she and the British parents she helped were grateful to each other, and stayed in touch. Should she have been denied the option to be a surrogate, which bettered her and her children's lives? To address the risk of exploitation in cross-border surrogacy we should expand women's options by (among other things) alleviating poverty, and we should regulate surrogacy to ensure informed consent; we should not take women's best choices away.
We should also support surrogacy properly at home. In the UK, surrogates volunteer to help to those who cannot carry children, proudly offering a solution which even the best doctors cannot. Far from being forced into surrogacy, they are usually mothers themselves, touched in some way by the pain of those who cannot conceive, and wishing to make the family they cherish possible for someone else. Having made that choice (a choice starkly absent for Offred and the other handmaids), they are clear that the children they carry are not theirs. You often hear UK surrogates say that they don't 'give up' the children they carry, they give them 'back'. The relationship between a surrogate and those she transforms into a family is one of the most heart-warming of human collaborations. In the UK, unlike in Gilead, surrogacy relationships are based on consent, and UK surrogates regard those who think them exploited as being wildly uninformed.
Although the overwhelming majority of UK surrogacy experience is positive, the law in the UK – dating from the 1980s – still discourages it. Surrogacy agreements are legally unenforceable; the surrogate is the legal mother of the child (even if, as is now common, she has no biological connection with the child she carries); and there are restrictions on advertising, the support professional third parties can offer and, at least in theory, the compensation surrogates can receive. Instead of a legal framework which supports consenting surrogacy upfront, parents and surrogates muddle through an informal arrangement until the birth, after which there is a long court process to sort out parenthood. The UK framework has driven increasing numbers of intended parents overseas for surrogacy in search of greater legal certainty, something which has arguably exported rather than resolved the concerns about exploitation, as well as exposing children to enormous legal complications (newborn babies are routinely born stateless and parentless in cross-border surrogacy).
The good news is that a review of UK surrogacy law is now on the horizon. The UK's surrogacy organisations are unanimous in calling for reform, and the Law Commission will announce in the autumn whether it will take on the project. In the meantime the government has already made progressive changes over the past few years, including giving maternity leave rights to parents through surrogacy and allowing unmarried and same-sex couples (and shortly single parents) to have their parentage recognised. There is widespread acceptance that the law, not substantially reviewed by Parliament since it was written more than thirty years ago, needs to be brought up to date.
What we need as the next step is to create a clearer legal framework for those going into UK surrogacy arrangements, to facilitate informed consent, to give greater clarity, and to ensure that children are no longer born into legal limbo. The fact that the law currently makes a surrogate incapable of consenting to the transfer of parenthood until six weeks after she has given birth feels archaic and out of step with reality. Thirty years of real surrogacy experience shows that women can - and do - commit to carrying a child for someone else. In the UK if not in Gilead, surrogacy is a reproductive choice, and one which deserves our respect and recognition.
And here we come back to The Handmaid's Tale. The heart of the story is a warning, not against surrogacy, but against women not being allowed to decide for themselves how and when (and for whom) they bear children. We must do all we can to ensure that surrogacy is ethical, and that any choice to become a surrogate is an informed and independent one, both at home and abroad. But we must also make UK law fit for the 21st century by supporting ethical surrogacy properly and acknowledging that, when it comes to reproduction, women do know their own minds. What the Handmaid's Tale has taught me is that becoming a surrogate, like all other reproductive decisions, should be part of a modern woman's right to choose.
The Handmaid's Tale was commissioned by the Hulu network and produced by Bruce Miller. The series is shown on Channel 4 in the UK - watch it online via All 4.
Buy the original novel by Margaret Atwood, and an earlier film adaptation directed by Volker Schlöndorff and written by Harold Pinter, from Amazon UK.