What is a 'professional model' of surrogacy? The title of this book intrigued me before I had even turned a page – I am used to most debates on surrogacy being on whether an altruistic, compensatory or commercial model is best. My initial instinct was that this book was going to be promotion of a version of commercial surrogacy, spun slightly differently to make it more appealing.
However, something told me I should be prepared for something else. I recognised the authors from previous research, even as far back as my own PhD. I remembered co-author Dr Liezl van Zyl of the University of Waikato in Hamilton, New Zealand, being an early proponent of 'psychological parenthood', where legal parenthood is not necessarily a by-product of biology. Instead, intended parents in surrogacy, by initiating the process, following it through the surrogate's pregnancy, and assuming post-birth care of the child, have the stronger claim for being recognised as the legal parent(s).
This psychological aspect of becoming a parent can be considered as significant as conception, genetics or birth. Given that surrogacy involves the separation of the processes involved in creating and raising a child, surrogates should be recognised in law as exactly that – the woman who gave birth to the child – but not automatically as its mother.
Surrogate-born children are little different to any other planned child, with the exception that gestation takes place in a woman who will not raise the child – who has agreed to do so for whatever reasons, be they altruism, opportunity or something else. Furthermore, it might be argued that parenthood necessarily involves parenting. Therefore, where it was the intention to separate these elements, the surrogate should be neither legally nor socially considered to be the mother of the child by default.
Together, the authors have acknowledged that: 'Legislation in many countries creates unnecessary risks for all parties involved in a surrogacy arrangement. Many intended parents plunge into the even riskier world of international surrogacy where they encounter further obstacles to securing parental rights when they return with a baby.'
In the round, these concerns have led to this new proposal – an 'alternative to the commercial and altruistic models of surrogacy, one that recognises the caring motives women have while at the same time compensating them for their work'.
The authors have also argued for professional surrogacy in other contexts, including in relation to fetal abnormality and decision-making during pregnancy, where they found 'fundamental defects within the commercial and altruistic models, as well as in the legal and institutional frameworks that support them'. They have also argued against the adoption model of surrogacy. In this book, what they propose is a model of surrogacy that values it as a form of family creation, recognises that altruistic motivations and compensation can go hand-in-hand, and is designed to protect all those involved.
Currently, in countries where surrogacy is allowed and/or regulated, the model is either entirely based on private commercial relationships, usually facilitated by profit-making agencies and other intermediaries, or deemed 'altruistic' in the sense that the surrogate can be recompensed for reasonable expenses. Though, as the UK regulatory system shows, there is overlap between the two models when courts have to determine parenthood according to children's best interests, no matter what money is paid.
In New Zealand, where both authors are based, surrogacy is not prohibited, but compensating surrogates is. Intended parents must jointly apply with a surrogate to the national ethics committee to have arrangements approved in advance. Even with approval, either party can change their mind at any time.
The only way for the intended parents to achieve legal parenthood is to adopt. The proposed model would put surrogacy on a professional standing, with government oversight, greater protection for all parties and commitment to long-term relationships between the individuals concerned.
Surrogacy would not become a 'career', but the model, while recognising the surrogate's altruistic motives, would compensate her over and above expenses. A regulatory body would be responsible for licensing fertility clinics, ensuring compliance with a code of ethics, maintaining a surrogacy register and determining a fair compensation. Crucially, intended parents would be recognised as the legal parents at birth.
It is unlikely that surrogacy will ever be universally regarded as morally acceptable. It may be that acceptance has reached its apex: some people have beliefs and opinions – particularly about families and reproduction – that will never be swayed. Nevertheless, surrogacy isn't going away, so consideration ought to be given to the more complex and important issues it raises. This means focusing on the interests of children, as well as those of the intended parents and the surrogate herself.
The legal status that parents are afforded – and how this is achieved – needs to be further addressed, as this has an impact both domestically and internationally. We know that if surrogacy is banned, or if its regulation is poor or outdated, intended parents will seek it anyway – often in overseas destinations.
While I think the professional model has some flaws, the idea is very interesting, and should certainly be fed into ongoing debates on surrogacy regulation in the UK, New Zealand and elsewhere. It certainly raises an interesting option for consideration by the Law Commissions of England and Wales and Scotland, whose review of surrogacy laws are underway.
The book is a good read – it would interest anyone from lay readers with an interest in surrogacy to professionals and academics. The authors' exploration of ideas such as trust, care and vulnerability is carefully constructed and often persuasive. Their overall argument is sound and worthy of further exploration: that the shape of the law adopted by states – and more importantly its influence on people's behaviour – is partly what creates and maintains moral and ethical debates about surrogacy. The authors also weave in real-life and hypothetical surrogacy stories to their arguments, including a chapter the 'hard cases' of Baby M and Baby Gammy, which help make the book both accessible and engaging.