by Meera Somji

In December 2019 I attended a Supreme Court hearing on whether a young woman in the UK should be awarded damages to fund the cost of a commercial surrogacy in California by an NHS Trust, after losing the ability to bear a child due to several incidents of hospital negligence. The key questions debated by the Justices revolved around whether the young woman should be able to claim the cost of a commercial surrogacy (when such a service is illegal in the UK) and the cost of surrogacy using donor eggs (when this goes against conventional views on what it means to ‘restore’ one’s fertility).

The ruling declared that the answer to both questions is yes: the court upheld that damages to fund surrogacy arrangements using donor eggs could be recovered, and that damages to fund the cost of foreign commercial arrangements could be recovered.

The judgement left me surprised for two reasons: one, it is telling of how far the idea of the family has shifted from a focus on nature to a focus on nurture; and two, dissent among the Justices demonstrates the degree of incoherence in surrogacy laws, both worldwide and between our own civil and criminal codes. To me, not only do such inconsistencies illuminate different normative views on who is entitled to be a parent, but also enable the exploitation of the most vulnerable.

Image credit: Bill Oxford, Unsplash

Whose eggs?

 In some cases of hospital negligence, it is up to the courts to determine whether a claimant can claim damages to fund a particular treatment or service. Damages are designed to put the claimant “as far as possible in the position they would be in had they not been injured”, but the courts must rule against if such damages are against public policy or considered unreasonable. In this case, the young woman wanted a large family, but the expert evidence showed that it was probable that she could have only two children using her own eggs that she harvested before her cancer treatment. A key question debated by the Supreme Court judges was, should the NHS trust fund surrogacy arrangements that use not only her own eggs, but also donor eggs?

In the first judgement on this case in September 2017, the courts said no. Sir Robert Nelson said that he was bound by a previous decision by the Court of Appeal in 2002, which stated that surrogacy using donor eggs was not restorative of the claimant’s fertility. A focus on the “biological” as core to the meaning of fertility underpinned this decision. Lady Hale – now an icon in the UK for many reasons, not just her spider brooch – gave the main judgement in this case.

The first astonishing element of last week’s judgement is that Lady Hale reversed her previous view, writing that she feels that the view she expressed in 2002 ‘was probably wrong then and is certainly wrong now’ (quoted from the judgement summary). Christopher Johnstone QC, the barrister representing the young woman, argued that surrogacy using donor eggs can no longer be considered a last resort for women wanting children in the twenty-first century. To distinguish between one’s own eggs and donor eggs in today’s world feels out-of-date, then, if the purpose of damages is to help the claimant recover what she has lost – the ability to have children.

Fertility – something that is usually considered a matter of “nature” or “biology” – is shown, in this case, to be something political, influenced by material changes in the political economy, medical technology, and women’s role in society. These changes end up disrupting previously held assumptions about what fertility means. Is it the egg? Is it the carrier? Is it the ability to bear a child? Extreme cases like this one can help to reveal that what is “natural” is nothing more than what is agreed-upon as socially acceptable at the time. And with this revelation comes an opportunity to think critically about the values that underpin our notions of motherhood, womanhood, and family.

Civil and criminal law

 What was equally astonishing about the judgement was that the Justices did not all agree on another key question debated by the Supreme Court – whether damages to fund the cost of commercial surrogacy abroad could be recovered. The answer was yes, but the court’s judgement passed by a majority of 3 to 2, a decision that is far from emphatic. Lord Carnwath and Lord Reed held that damages to fund the cost of commercial surrogacy in California should not be awarded when the practice is illegal in the UK.

In the UK surrogacy is only permitted on an ‘altruistic’ basis. A woman may volunteer to carry another woman’s child so long as she agrees to only be recompensated for the expenses that she incurs. It may be a gift, but it cannot be a commercial service. In Germany and France surrogacy is banned entirely, while in California the industry of commercial surrogacy has grown rapidly in the last decade.

This Supreme Court judgement brings into sharp relief the way in which legislation around surrogacy varies hugely from country to country. It is my claim that such incoherence is telling of the different values that underpin who is and who is not normatively entitled to be a parent in each location. In Ukraine or Thailand, for example, the state regulates that only heterosexual married couples are legally empowered to seek a commercial surrogate. Heteronormative notions are affirmed by the courts and politicians in these geographies. And although the legislation in California is known to be friendly towards gay couples, I contend that the high financial cost of commercial surrogacy also affirms a normative view of parenthood: that high and middle-income individuals are more entitled to become parents than others. The financial barrier for commissioning individuals reinforces and reproduces norms that privilege some bodies – typically wealthy couples who are married or in civil partnerships – over others who deviate from this norm.

The main reason why the case was escalated to the Supreme Court was to shield the NHS from a financial burden, but to me it is clear that the Justices found themselves navigating a maze of moral questions directly related to whether individuals in the UK have as much of a right to be parents as individuals elsewhere. The final ruling fell on side of saying yes, even if that meant opening an inconsistency between UK civil and criminal law.

Although our civil courts have now validated that commercial surrogacy is “restorative” of one’s fertility, our criminal courts maintain that it is illegal. In the next section I will explore what this tells us about who UK criminal law supposedly “protects”, and who it doesn’t.

The reproductive economy

If the Supreme Court ruling is a tacit endorsement of commercial surrogacy so long as it is done abroad, my next question is, what are the economic implications of this from a feminist standpoint? Does commercial surrogacy empower women to profit from their labour? To me, the answer is no and I argue that commercial surrogacy will not justly empower women to profit from their labour until there is a deep transformation in what is valued and what is devalued.

What is at stake is revealed by the fact that not only do the laws vary, but also the way in which surrogates are “priced”. This specific case – a woman in the UK wanting a commercial surrogacy arrangement in the US – is not representative of the wider industry. Interested consumers can shop around and find better deals in poorer countries. Jessica Peet’s research has shown that the story of transnational commercial surrogacy is the story of upper-class individuals in the West benefitting from historical and contemporary neo-imperial relationships with the global south, where financially vulnerable women are targets for surrogacy recruitment, often exploited by their agents and put under severe surveillance.

Not only this, but it is typical for the surrogate mother to receive only a fraction of the total cost of the surrogacy. Peet has found that the total cost to the commissioning individuals averages over US $35,000, but the surrogate typically receives less than US$8,000.

Gottfried and Chun (2018) provide a persuasive argument for including the labour of surrogate mothers and sex workers in the reproductive economy, which feminists have long drawn attention to as undervalued. In short, the argument goes that what we value socially (masculinised labour in the formal economy) drives what is economically valued (seen as skilled and remunerated accordingly). By contrast, what is understood as inherently feminine is devalued as part of the reproductive economy. If this feels familiar, it may be because the “natural” or “biological” relationship between womanhood and caregiving is used to explain why housework is not considered labour, and why carers are not treated like skilled workers.

From this angle, commercial surrogacy provides an opportunity to shift the labour of pregnancy from the reproductive economy and into the productive economy as a form of “work”. But looking at how little money actually makes it to the surrogate, it becomes clear that it is not enough to say that surrogacy is work; there needs to be a deep re-structuring in the value system that underpins the economy if surrogate mothers are to be justly remunerated and truly empowered.

What makes the question of surrogacy so complex is that, on my reading, the laws in the UK, Germany and France imply that pregnancy is so central to womanhood that it should not be priced at all – it should be “priceless”. To pay for a woman to carry another’s child is seen to violate her dignity. This type of “morality law” is also employed by those who are against legalising sex work. It relies on notions that pregnancy or sex are so core to the idea of womanhood that it would be profane to commercialise them. The law, on this view, must protect women from being used as the means to someone else’s ends.

Such “morality laws” make it hard to shift the discourse from rescue and rehabilitation to one of workers’ rights. In today’s global commercial surrogacy industry, it is the rights of the most marginalised – surrogate mothers who face intersectional injustices of nationality, race, and class – that need to be spotlighted. If pregnancy or sex are part of being a woman, and not a form of work, it becomes easier to justify the poor working conditions and low financial share received by a surrogate mother anywhere in the world. The fact that this form of labour is devalued, then, appears to be supported by the laws (including UK criminal law) that supposedly “protect” women from exploitation. Funny that.

All in all, the question of surrogacy is fraught with questions of injustice. In this specific case, how can one’s ability to have children justly be restored, and what defines a family? In ruling that damages can be awarded to fund the costs of surrogacy with donor eggs and foreign commercial surrogacy, to my mind, the Justices broke with conservative attitudes about the “biological” family and conceded that individuals in the UK have as much of a right to be parents as individuals in California. These can be seen as progressive steps towards supporting reproductive autonomy, defined as the ability to choose when and how one wants to have children.

But in tacitly endorsing a UK citizen paying for another woman to carry her child (so long as that surrogate mother is not in the UK), I believe that the UK courts have made clear which surrogates are “priceless” and which surrogates are not. Moreover, “protecting” certain women from being surrogates actually prevents surrogacy from being formally recognised as productive labour. So long as the laws are so inconsistent, the promise of commercial surrogacy raising the value of reproductive labour will remain a hollow one.

Meera Somji is studying for an MSc in Gender, Development and Globalisation at the LSE. Her writing so far has focused on the globalised care industry and menstrual health as a human right. She graduated from the University of Cambridge with a degree in Politics, Psychology and Sociology and has worked as a strategy consultant and product manager in London and New York. While living in Berlin Meera volunteered in refugee resettlement and facilitated unconscious bias workshops with artistic organisations. Meera is an active political campaigner and currently volunteers in her mutual aid neighbourhood group, local Labour Party women’s forum, and as a mentor within the Ismaili Muslim community.