Guest post by Nathan Hodson
Kim Kardashian West and her husband Kanye West announced the birth of their third child, named Chicago, last month. Chicago West was born via surrogate. All the significant events of Kardashian West’s life have been documented season by season on Keeping Up With The Kardashians and naturally her surrogacy was public too. A statement on Kardashian West’s website celebrated the birth, but also outlined her rationale for choosing surrogacy (paywall):
”I have always been really honest about my struggles with pregnancy. Preeclampsia and placenta accreta are high-risk conditions, so when I wanted to have a third baby, doctors said that it wasn’t safe for my – or the baby’s – health to carry on my own. After exploring many options, Kanye and I decided to use a gestational carrier … [W]e implanted my fertilized egg in our gestational carrier, our baby is biologically mine and Kanye’s.”
It is unusual to have access to a frank explanation of such culturally influential individuals’ fertility choices. Traditionally, arguments in favour of surrogacy have focussed on alleviating the pain of infertility. Others might argue that rich people ought to be able to pay poor people to do the work of carrying a child as long as it meets consent criteria.
Kardashian West has taken a different approach: she is not infertile, but has some serious obstetric risks. Preeclampsia is a disease of pregnancy characterised by high blood pressure and protein in the urine with life threatening complications. Placenta accreta occurs when the placenta burrows too deeply into the uterine wall. Kardashian West is not paying a surrogate because of mere convenience or preference, but for a serious medical reason.
Recent court cases in England have highlighted the tensions in English surrogacy law and it is likely that new legislation will be developed soon. Making good law involves understanding the reasons why people enter into surrogacy agreements and this highly publicised case sheds light on one, often hidden, group of people seeking parenthood through surrogacy.
Kardashian West describes choosing surrogacy based on her doctor’s assessment of the risk of another pregnancy given previous complications. This rationale for surrogacy hinges on the reduction of harm. What if the harms of surrogacy were comparable with those of the pre-existing condition? A reduction of harm to a genetic mother could even increase total harm to all involved. Doctors ought not to participate in a practice increasing total harm, so this seems like a reasonable limit to impose on surrogacy for medical reasons. However comparing the harms is not simple.
Health risk is inherent to any pregnancy. In R v British Broadcasting Corporation ex parte Prolife Alliance, Lord Justice Laws recognised that the continuation of pregnancy is almost always more dangerous than abortion. It is likely true that the egg extraction required for surrogacy is in most cases also safer than a complete pregnancy. Obviously this is not an appropriate reason for doctors to advise choosing surrogacy. Most of the time surrogacy would not alleviate risk: it would just displace the risk onto another woman.
If the overall risk could be lowered, however, then medical intervention might be justified. Superficially, this suggestion appears to open the door to older women (whose natural risk of obstetric complications is higher) being advised to use younger women as surrogates despite still being fertile. In fact, taking into account the inherent risks of genetic surrogacy, there is a significant threshold to overcome before any surrogacy can reduce the overall risk.
Genetic surrogacy uses IVF to create an embryo to implant into the gestational mother. This carries a risk of twin pregnancy of around 21%. Twin pregnancy has many complications during pregnancy and labour including pre-eclampsia, anaemia, and obstetric haemorrhage. Twin pregnancy also harms the foetus, increasing the chance that the foetus is small for gestational age or born prematurely. One way to reduce risk in twin pregnancy is foetal reduction (that is, abortion of one twin). Abortion during surrogacy is complicated by the complexity of the stakeholder relationships and the high financial and emotional investment of intended parents.
IVF is an independent risk factor for pre-eclampsia, increasing the rate from 10% to 14% in one study. Ectopic pregnancies account for 1-2% of natural conceptions, compared with 2.1-8.6% of IVF conceptions. The genetic mother herself is at risk of ovarian hyperstimulation syndrome which follows the removal of her eggs. This occurs in 0.4%-1.7% of pregnancies and can result in significant morbidity and mortality, although the frequency of these complications is not known. The health risks associated with genetic surrogacy using IVF are significant. It is no solution for non-pathological risk but may play a role where the risk is particularly elevated.
Kardashian West suggests that her doctor recommended surrogacy due to her previous pre-eclampsia. Pre-eclampsia is characterised by high maternal blood pressure, protein in the urine and accumulation of fluid in feet and ankles. The complications include seizures and blood disorders and can be life-threatening. Pre-eclampsia effects about 6% of pregnancies and is managed in the UK with medications, close monitoring as a hospital inpatient, and induced labour at 37 or 38 weeks. Women with a previous history of pre-eclampsia are usually advised to take daily aspirin from 12 weeks. In a Swedish study 14.7% of women with pre-eclampsia in their first pregnancy had recurrence in their second pregnancy.
On top of the risk due to IVF, surrogacy is a risk factor for pre-eclampsia. There is a known paternal effect due to the “foreign” nature of the genetic material. Prior exposure to a man’s sperm reduces the risk of pre-eclampsia when carrying his child, as does each subsequent pregnancy with the same man. In surrogacy this risk is thought to be heightened as the embryo is completely genetically unlike the gestational mother and unexposed to the male. Although the surrogate mother’s family history has been screened this cannot predict the pre-eclampsia risk of implanting a Kardashian-West embryo into a third party uterus. The couple are, in a sense, exporting the Kardashian West pre-eclampsia risk onto another woman.
It is possible that under certain circumstances the total risk of surrogacy for the genetic mother, the surrogate mother, and the foetus, would end up being similar to that of natural conception for the genetic mother and the foetus.
A past history of placenta accreta constitutes a more persuasive reason to choose surrogacy. Placenta accreta means the placenta invades and becomes inseparable from the uterine wall. This affects 0.2% of pregnancies. During delivery the separation of the placenta from the uterine wall causes massive obstetric haemorrhage leading to haematological complications and occasionally hysterectomy. In o134 cases of placenta accreta (and related conditions percreta and increta), attempts to remove the placenta resulted in 18 severe maternal complications including sepsis and fistulae between bladder and vagina, as well as other bladder and bowel damage. The incidence of placenta accreta has increased in recent decades due to the use to caesarean sections which increase risk in subsequent pregnancies.
The frequency of recurrence of placenta accreta remains controversial. Small studies have widely varying results. However a French study found that of 21 women who had placenta accreta in their last pregnancy, 6 had placenta accreta in their next pregnancy.
The best reason for Kardashian West’s surrogacy is her previous caesarean and placenta accreta, rendering her uterus itself at increased risk of future placenta accreta. The use of another womb is a response to disease. However the surrogacy process increases the surrogate’s risk of getting pre-eclampsia and of other complications connected with multiple pregnancies. This means pre-eclampsia alone is a weak reason for surrogacy as it remains unclear whether or not the risk has simply been displaced onto a different woman and onto the foetus(es). More broadly this case shows that drawing the line is not straightforward due to the imprecise estimates of risk and the many patients whose health and rights need protection.
The complexity of surrogacy law developed out of the vulnerability of all the parties. Women offered large amounts of money to carry a child, accepting both the health risks and the pain of giving up a baby, were at risk of exploitation. Infertile couples (whether due to sexuality or biological problems) were vulnerable to anybody offering to alleviate the pain they experienced due to childlessness. A child was caught in the middle. Surrogacy was viewed as the last resort, something nobody would choose.
The joy surrogacy brings to intended parents deserves to be celebrated. Parents are deeply grateful to the women willing to take the medical risk of carrying a child and recognise the indivisible gift of genetic parenthood which would otherwise be impossible. Couples who have spent years trying to conceive and reluctantly turn to surrogacy might well be perplexed if couples increasingly choose surrogacy while the possibility of natural gestation remains open to them.
Beyond the emotional discomfort, this would create a practical conflict. Surrogacy is a scarce resource for infertile couples. It is not in their interests that surrogacy becomes a treatment for potential obstetric risk. Such women could reasonably argue that they would willingly face obstetric risk if they were able to conceive and carry a child themselves. Possibly the putative risk threshold ought to be elevated to account for the dire circumstances of couples unable to conceive at all naturally.
I’ve shown how difficult it can be to discern whether the overall health benefits of surrogacy outweigh the harms to the different parties. Non-maleficence demands that doctors ought not to promote procedures which increase overall health risks. If obstetric risk became a more common reason for surrogacy then the specific risks would need to be closely circumscribed to avoid recklessly increasing the total burden of disease in society. Whereas the total health risk could possibly be reduced in placenta accreta, that is less clearly the case in pre-eclampsia. The case by case nature of the challenge would make this difficult to judge.
Some would argue that Kardashian West’s decision to take her health into her own hands by choosing surrogacy is the future. Possibly it is even a feminist approach in that it could reduce the risks of childbirth for some women. Increased choice and wider options are key concepts within third wave feminism. Other feminists might disagree, arguing that it is typical of Kardashian West’s individualist brand which relies on the use of her privilege to her own advantage and occasionally in ways that harm other women.
The introduction of the Surrogacy Arrangements Act 1985 was driven by moral panic. Despite minor adjustments since, many scholars believe it is time for new legislation. The new approach may involve pre-authorised surrogacy agreements as is the case in Israel and Greece, offering the potential for closer scrutiny of surrogacy within the UK. This case shows that the law must be alert to the changing indications for surrogacy. When intended parents are fertile, drawing the line between surrogacies that reduce obstetric risk and those that just displace it onto another woman is important to maintaining the integrity of surrogacy.