IN THE UK, women are free to give up nine months of their lives to carrying, gestating, and giving birth to a child that will never be theirs. For aspiring parents who cannot or will not conceive naturally, a surrogate can intercede on the condition that it is done “altruistically”. Under the provisions of the Surrogacy Arrangements Act 1985, a woman is forbidden from going through the emotional and physical labour of pregnancy and childbirth if she does so for material gain.
Such a proscription flies in the face of neoliberal society’s sine qua non: the market economy. If you have something and wish to sell it, and another wants something and wishes to buy it, rarely does the Government get in the way.
Yet, by permitting even altruistic surrogacy, the UK is a relative outlier among Western European states. Most forbid it outright. Germany threatens doctors who perform surrogacy procedures with prosecution and imprisonment; France refuses to recognise domestic surrogacy agreements; while Giorgia Meloni’s Italy, despite being on a pro-natalist drive, has gone a step further. The Italian government denies recognition to domestic surrogacy agreements, and, since last November, foreign surrogacy agreements.
If the intent behind this market prohibition is to protect surrogates from exploitation and unethical labour, only Italy’s stance is coherent. Allowing citizens to travel abroad to hire a surrogate, and to return with a baby that the State recognises as theirs, but to forbid them from doing the same at home, suggests that surrogacy is something for the citizens of “lesser”, more-impoverished nations, where their desperation and need is greater. Such biological colonialism brings to mind the dystopian novels of Margaret Atwood and Octavia Butler, where certain members of society are deemed “breeders”, forced to reproduce again and again.
BUT this is the approach taken by most surrogate-parents-to-be in Western countries, including a geriatric couple in the UK whose case was before the Family Court, in March and April, where they were anonymised as Mr and Mrs K.
For surrogate parents to acquire full parental rights over their child, they need the court’s imprimatur. Until this point, the surrogate is the parent (even if they have no genetic connection to the child); they can upset the apple cart if they decide that they want to keep the baby after all. Disputes such as these are what usually trouble the Family Court, faced with the challenge of deciding whether they should award custody to the party whose desire brought the child into the world, or to the party whose biology brought the child into the world.
In this case, however, the issue was not that the surrogate wished to keep her child, but that the parents-to-be were both 72 years old. Their only child had died from cancer in 2020, and, while adamant that the new baby was not intended to replace their son, it was hoped that his presence would be a balm. In part thanks to their wealth, the couple had engaged an experienced surrogate and egg-donor in California, who was impregnated following an embryo transfer.
There is no question that the baby, anonymised in the court judgment as B, is loved and cared for: the Parental Order Reporter observed that “it was plain . . . Mr and Mrs K adore him.” Adoration of and desire for a child, however, do nothing to diminish the fact that the couple will be 76 when B is ready to start school, and 89 when he reaches his majority. In her judgment, Justice Knowles was candid: “It is foreseeable that one or both of them will become severely incapacitated or die before B reaches his age of majority.”
DESIRE is not the be-all and end-all to having a family. Many couples and individuals long to have a child, and yet for myriad reasons find themselves unable to do so. The only reason that Mr and Mrs K have been able to have another child this late in their lives is because of their wealth, which, in turn, played no small part in the court’s deciding to grant the parental order. It is possible for them to hire a full-time nanny to care for and to help raise B, and to plan to send him to boarding school when he is older.
All of this may be ameliorative, but does nothing to diminish the obvious concerns of having parents who are nearing the end of their natural lives, no matter what biblical precedent may have been set by Abraham and Sarah; nor had the Ks done anything to prepare for this eventuality. Their niece was unaware of their plans, and she and her partner, who have now promised to care for B “in the event of [Ks’] deaths or incapacity”, only became aware of his existence after his birth.
Justice Knowles acknowledged that she was presented with a fait accompli. Mr and Mrs K had exploited a moral and legal grey area, and her responsibility was to decide what was in B’s best interests. Handing him over to an overburdened state system would have helped no one, so the only solution was to grant the parental order.
This judgment, while inevitable, reflects the chaotic state of surrogacy in England. Domestically, it is de facto unlawful, while, internationally, it is not forbidden, even while cases such as the Ks’ show the obvious concerns. As ever, it is a system that rewards the wealthy and advantaged — often, but not always, at the cost of the poor and the disadvantaged.
Nicholas Reed Langen is a writer on legal and constitutional affairs, and editor of the LSE Public Policy Review.
