Surrogacy - Human Right or Reproductive Exploitation?

Wild variation in regulations worldwide ensure that surrogacy is both human right and exploitation

What used to be a costly, sci-fi solution to childlessness has emerged as an everyday story. But as the procedure becomes more common, so do cross-border legal and ethical problems, as highlighted by a case after a Thai surrogate mother bore twins: The Australian parents took the healthy child and left the one with Down syndrome behind. 

Such stories are just the tip of the iceberg of a global story. Surrogacy – having another woman bear a child for someone else – increasingly poses a troubling dilemma for governments, religious organizations, surrogates and intended parents, and even the children themselves. Surrogacy is a fundamental human right for some and exploitation of others, especially women who are poor.

The rising popularity of the procedure in the United States, India, Thailand and elsewhere has led to devious online brokers, questionable private clinics, clandestine trips abroad and a thriving underground market along with well-publicized abuses. Some governments, most recently in Thailand, have imposed stringent regulations.

Cross-border arrangements are even more complicated with varying laws, medical practices, customs or codes of ethics. Often problematic in cases of surrogacies undertaken abroad is establishing citizenship and parentage of the baby.

Critics argue that surrogacy, also known as “baby outsourcing,” constitutes exploitation of women encouraged to provide wombs-for-rent. Many surrogate mothers are destitute. Furthermore, when the only motivation is money, surrogacy may have negative health and social consequences for women. In contrast, supporters consider surrogacy a fundamental human right, consistent with the freedom of personal choice and the right to bear children. Surrogacy empowers women to choose whether to participate and gain financial compensation for their valued service. Surrogacy also permits otherwise childless men and women to have children.

Surrogacy has existed since antiquity. In the much of the past, surrogacy simply involved another woman – the surrogate was impregnated by the prospective father and bore the child for the intended couple. Babylonian couples relied on this practice to produce progeny and avoid divorce. The Bible relates the story of Abraham and his infertile wife, Sarah, who offered her handmaiden, Hagar, to her husband to bear a child.

The introduction in 1970 of in vitro fertilization – fertilization in a laboratory by mixing sperm with eggs surgically removed from an ovary followed by uterine implantation – radically altered the basic evolutionary process of human reproduction and the practice of surrogacy. The first in vitro fertilization leading to the birth of a child was in 1978, and an estimated 5 million babies have followed since, with about half born in the past six years. 

The famed Baby M case in 1986 was the first US court ruling on the legitimacy of surrogacy. After signing a contract with a married couple to be inseminated by the husband, to carry and give birth to the baby and relinquish parental rights for a fee, the surrogate mother refused to hand over the child. Eventually, the couple prevailed in a landmark court ruling in the state of New Jersey. The biological mother gave up the baby, but had visitation rights.

Surrogacy laws vary worldwide. All forms are banned in many countries, including China, France, Germany, Italy, Japan, Pakistan, Portugal, Saudi Arabia, Spain and Turkey. Belgium, Canada, Denmark, Ireland, Israel, Netherlands and United Kingdom permit “altruistic surrogacy” with the surrogate receiving payment only for her expenses.

However, with babies considered a blessing, with childlessness viewed as a stigma by many, countries find limiting surrogacy problematical. Surrogacy laws are often complex and costly to interpret. Furthermore, flourishing underground markets in China and Thailand, as well as overseas birth travel to India, the United States and elsewhere reflect growing demand. Criminalization leaves anxious couples and needy surrogates open to exploitation by black-market brokers.

A smaller number of countries, such as Georgia, India, Mexico, Russia, Thailand and Ukraine, permit both commercial and altruistic surrogacy. In Australia and the United States, relevant laws vary by state or province and type of surrogacy. For example, while New Jersey, Pennsylvania and Virginia permit altruistic surrogacy and Arizona, Michigan and Nebraska forbid surrogacy – California, Connecticut and Massachusetts are surrogate-friendly, making them magnets for couples from other places with stringent anti-surrogacy laws.

Costs vary by country. A successful surrogate pregnancy in Thailand and India can cost up to US$72,000 and up to US$225,000 in the US, with costs rising when a viable pregnancy is not achieved on the first attempt. Typically, the intended parents cover costs that include payments to the surrogate, the egg and sperm donors, a surrogacy agency, lawyers, insurance, travel, hospital, medication and related expenses.

While global estimates of surrogacy are lacking, data indicate that the practice has increased rapidly. Gestational surrogacy in the US, for example, accounts for more than 2,000 babies annually, almost three times as many as a decade ago. In the UK the number of babies registered after being born to a surrogate has more than doubled in the past six years. The number of Australian couples traveling overseas to have children through surrogacy has tripled in three years.

Where surrogacy is permitted, the agencies matching intended parents and surrogates are largely unregulated. As a result, eager couples longing for a baby and poor surrogates seeking money can be preyed upon by the unscrupulous or incompetent. Among the abuses: not paying the surrogate, failing to cover medical needs, overcharging intended parents and unenforceable contracts.

In addition to the ethical, moral and religious objections, surrogacy raises a number of issues often left unaddressed even when legal agreements are involved. What happens, for example, if during the pregnancy the surrogate or intended parents die? What if neither set of parents want the baby? 

If the pregnancy has medical complications or psychological consequences, results in multiple births or requires cesarean section, does the surrogate receive additional payment? What if the surrogate refuses to turn over the baby to intended parents who may be unmarried, single or homosexual? Can intended parents require the surrogate to terminate the pregnancy, especially when the fetus has serious health problems? Does the baby acquire the citizenship, parentage, adoption status and legal rights of the intended parents?

With widespread accessibility of reproductive-assisted technologies and the globalization of communications and services, surrogacy is increasingly practiced with emerging and conflicting laws among parents based in different legal jurisdictions. Children have legitimate questions regarding their medical history. Absence of international regulation leaves surrogacy largely up to the brokers and the vulnerable parties. International guidelines and protections regarding surrogacy, perhaps similar to conventions and protocols concerning children, adoptees or refugees, would be a vital step towards guaranteeing the rights of the surrogate and intended parents as well as safeguarding the wellbeing and interests of the baby.

Joseph Chamie is former director of the United Nations Population Division and Barry Mirkin is former chief of the Population Policy Section of the United Nations Population Division.  This appeared originally in YaleGlobal, the website of the Yale University Center for the Study of Globalization.