On Valentine’s Day 2018, a photo-within-a-photo caused ripples across social media. It showed a black and white sonogram of a 20-week-foetus, held up by two men’s hands. One belonged to Oscar-winning screenwriter and civil rights activist Dustin Lance Black, the other to his husband, the Olympic diver Tom Daley.
Many of the couple’s fans congratulated them on the news. Others, though, were curious - who did the womb in the photo, the vital backdrop to the happy couple’s joyful announcement - belong to?
Some asking this question were driven by homophobia, a sorry bigotry encapsulated in the dog-whistle of the Daily Mail’s headline ‘Please don’t pretend two dads is the new normal’. Others, though, were feminists, long concerned about the ethics surrounding what some dub ‘wombs for rent’.
Lance (he goes by his middle name) is ready to talk about these concerns, and so many more, because he’s just made a six-part radio docu-series for the BBC all about surrogacy.Surrogacy: The Family Frontier, follows Lance as he embarks on his own new frontiers. When he uploaded that sonogram photo, surrogacy was just what his gay friends in California did. It’s what a lot of his straight friends did, too. Now, though, he finds out what other people think. These include intended parents, both straight and gay, surrogates, anti-surrogacy campaigners, surrogacy agencies and those at the cutting edge of technologies that have made it possible for him and Tom to become dads.
While Robbie Ray, Tom and Lance’s five-month-old son, naps for ‘a blissful 20 minutes’, Lance tells Grazia, over the phone that he's fine exposing his private life to get the message out
‘I didn’t really have a choice not to’, he says cheerfully: ‘not the way my mother raised me.’ Growing up a Mormon in Texas, ‘often people would say things about how strange and different we are. My mom taught me that when that happens, you don’t get angry, you ask questions.’
So when he saw that Daily Mail headline, ‘I had to take a deep breath, just like when I was in school, and ask questions. Not just of people who were gonna agree with me, but people who were concerned with what Tom and I had done to build a family.’
One of the most concerned people out there is Swedish feminist and anti-surrogacy campaigner Kasja Ekis Ekman, who Lance has a heated debate with in his podcast. She says ‘surrogacy means making a commodity out of a woman’s body’, and Lance takes her on, disagreeing that surrogacy is so black and white. Eventually, he agrees ‘with many of her concerns about how women have been treated because of surrogacy around the world, and the potential landmines that exist for women’, he now says.
The legal status of surrogacy changes from country to country. In the US, the law is state-by-state, and in California, where Lance owns a property close by to Robbie Ray’s surrogate, ‘financial desperation’ is not allowed to be a factor in a woman’s offering of surrogacy. She also has to have previously given birth.
Tom and Lance’s full journey to parenthood took a year and a half. First, they were emotionally and physically screened, then got to know their surrogate, who’d also been emotionally, physically and financially screened, then came this contract, before pursing IVF, using a separate egg donor’s, rather than the surrogate’s eggs. Not everyone does it like this, as the podcast explores. Lance seems to think more people should do it this way, particularly the contract bit.
He goes into great detail, both in the podcast and this interview, about the ‘extensive documents you create,’ ahead of a surrogacy. Intended parents and surrogates ‘agree what you want, giving into all of the eventualities whether good or bad and making sure that it’s very clear who has custody of this child’.
It's not so much to do with what a surrogate might or might not eat or drink or do with her body during the pregnancy, which tends to be settled ahead of the matching process. Instead, it tends to cover things like who’d pay the medical bills should the pregnancy end in miscarriage - as one in four pregnancies do - and how to get the intended parents onto the birth certificate. This way, ‘women are empowered’, Lance says.
In Sweden, Iceland, Norway, Finland, four of the top ten countries for gender equality, surrogacy of any sort, even if you want to carry a child for an infertile sister, is illegal. And in countries where some of the world’s poorest women live, such as India, Thailand and Mexico, surrogacy has been outlawed after reports of women being ‘abused and put into these camps’, as Lance puts it. In the podcast, a BBC foreign news expert tells of how these cheapened bodies are fertile farming ground for other people’s babies, ripe for pimps’ exploitation.
Lance’s proposed solution to this problem is for more places, such as the UK, where surrogacy laws are under review by lawmakers, to make surrogacy legal and regulated: ‘I don’t often think that banning things outright works,’ he explains, ‘Particularly once we have the technology in place that makes it possible, people will simply go elsewhere. The drive to have children is so strong, i know it absolutely.’
‘Kasja’s opinion was to ban [surrogacy] outright,’ he continues, ‘my opinion was to start to build a law so that it is surrogates are the ones in power to find the parents they so choose. Intended parents ought not ever be seeking out surrogates.’
The justification for the current UK law outlawing paid surrogacy or egg donation, beyond reasonable expenses, is that this sort of biological commitment cannot be influenced by money. If you want to be a surrogate, you have to do it for altruism’s sake.
Why would the UK want to borrow any element of the US’s paid-for healthcare infrastructure, I wonder? Lance describes the pitfalls of the US healthcare system’s exclusivity, and says it’s ‘one of the only first world countries without proper healthcare’.
When asked why he thinks this abysmal healthcare system still manages to produce some of what he calls the ‘strongest laws about surrogacy’, he won’t be drawn. What is for sure is that surrogacy isn’t for those who can’t afford it - on the podcast, he is audibly uncomfortable when speaking to a gay couple who found their surrogate on Facebook, paying her very little and not undergoing any official screening ahead of her pregnancy. But what price for something so huge?
The answer, Lance says, is decent expenses and ‘Altruism - it has to be a part of what we’re doing here in family building’
Lance is certain that his and Tom’s surrogate, who was compensated because she was ‘taking time away from work, having to hire babysitters, not being able to be at your career for some time’, altruistically chose to carry Robbie Ray. It’s a wonderful gift that only a woman can ever give, I say. Is there anything equivalently wonderful that only a man could ever give?
‘I doubt it, I don’t know… I’m not sure…’ Lance takes a moment, returning to his own childhood again. ‘I’m my mother’s son, so when it comes to altruism and understanding how to do things to benefit a person’s life…the women in my life have been much better than the men.’
‘I’m sure there are men who have done that are truly altruistic,' he adds, 'but I can’t think of one that a woman can’t do also. If we’re talking biology, some men have been sperm donors to heterosexual parents where there’s [a fertility] issue so that’s somewhat comparable, but we’re talking about 30 minutes in the room, not a year and a half of your life.’
Is there hope for a future where foetuses, which can already exist up until five days after conception and after 26 weeks of gestation, outside of a woman’s body, can be grown in labs, rather than women’s bodies?
‘I would leave that to science fiction writers’, Lance responds, adding ‘What’s beautiful about the journey of surrogacy is that relationship you build with your surrogate, when it’s done in places with good law.’
‘These aren’t women you stop speaking to once your child is born, this is someone who’s part of your family. We love and adore our surrogate, we speak to her and her family constantly, I’m sure our son will speak to her for the rest of his life as well.’
My science fiction solution ‘sounds horribly cold’ to Lance, even after I suggest that IVF was an absurd concept just 50 years ago. But I can’t help wondering if it would provide a very neat cure to all the horrid impacts of pregnancy on women's bodies. There’d be no morning sickness, no Braxton-Hicks, no stretchmarks,, no 85% of women suffering tears to their genitals during childbirth, no 25-34% of women reporting traumatic births and a huge drop in maternal mortality. And for the intended parents, if women were taken out of the equation, relationships wouldn’t need to be formed with those surrogates, and those hefty contracts would never need to be drawn up, at great expense.
Our interview draws to a close as Robbie Ray begins to stir. It’s hard to tell whether Lance had always intended to know so much about how his son, and so many other adored children like him, arrive in the world. He does, for what its worth ‘give my hats off to the women who sacrifice all the risk to help men and women build families’.
Tom, meanwhile, is making his own documentary film on surrogacy for the BBC, and probably ‘Must just think mine’s absolute rubbish…I’m kidding!’ Lance jokes. ‘We were just of the same mind, the best way to confront those negative attitudes was to open a window, let the light shine in.’
It’s a lot for two people with a young child and two careers, and Tom’s previously said gay men are under more of an obligation to explain their use of surrogates than straight couples are. He recently told Metro.co.uk that Kim Kardashian ‘didn’t get half the backlash’ after her third child with Kanye West was born via surrogate, without acknowledging that Kim suffered life-threatening pre-eclampsia and placenta accreta in a previous pregnancy. By comparison, he and Lance never faced such life-threatening obstacles to healthy conception, and there's hope his documentary will explore this.
Perhaps Tom and Lance always regarded Robbie Ray’s arrival as a woman-centric miracle of life, but Lance’s nuanced and thoughtful discussion of the facts definitely helps re-frame what many viewed last Valentine's Day as a glib dismissal of a woman’s integral role in baby-making. Time will tell whether a review of UK surrogacy laws can handle the ethical concerns that arise when surrogacy’s many Storks emerge from the shadows. But by making that sonogram go technicolour, filling in the bits we didn’t all see from the off, Lance has taken a step in the right direction, answering the begining of many questions. Because while it’s a human right to have a family life, if women are being expected to take on dangerous biological work on behalf of anyone else, whose family’s life is it anyway?
Surrogacy: A Family Frontier’ is a new BBC Radio 5 Live podcast by Dustin Lance Black available on BBC Sounds.