Surrogacy is by no means a new phenomenon. For millennia, the rich and powerful have nominated women to provide them with babies—but the difference today is that technological advances like IVF have meant those babies can actually be created using donated sperm or eggs, or even borne by a gestational carrier, in the case of surrogacy.
Combined with softening cultural attitudes, surrogacy has seen a boom in the past two decades. Even as far back as 2012, the industry was worth £4.7bn ($6bn) a year. In the UK, the number of parental orders following surrogate births tripled from 2011 to 2018. Of course, the actual number of surrogacy arrangements may well be higher, because there’s no obligation to seek such an order.
There’s too much scope for surrogacy to harm society’s most vulnerable
Surrogacy is a godsend for those who can’t have children naturally but still want their own biological child rather than going through the adoption process. In the UK and more broadly in the West, domestic surrogacies go smoothly and according to plan in the vast majority of cases. For the most part, everyone comes out the other side satisfied, often having been changed by such a profound experience, with the parents feeling inextricably connected to their surrogate through the creation of this new life. But the procedure has a much more pronounced human cost in other parts of the world, and stories of horrific and dehumanising mistreatment are increasingly hitting the headlines.
Take the case of Baby Gammy, which shocked the world. Baby Gammy was born in 2016 to his surrogate mother in Thailand using the sex cells of his Australian parents David and Wendy Farnell—who then left him in Thailand after learning he had Down’s syndrome. In fact, Baby Gammy was a twin—and the Farnells took his non-disabled sister Pipah back home to Oz. To many commentators’ consternation—and my absolute horror—the Chief Judge of the Family Court of Western Australia would later rule that Baby Gammy had not been abandoned.
There are also countless examples of financially and socially vulnerable surrogate mothers being targeted and exploited by surrogacy recruiters, lured by promises of hefty payment and then kept in squalid, inhumane conditions. Prior to the Russian invasion, for example, surrogates in Ukraine were being offered up to £16k ($20k), more than eight times the country’s average annual income. In fact, Ukraine was the only country in Europe with an official surrogacy programme, through which surrogates could be paid legally. (By contrast, here in the UK it’s illegal to pay for surrogacy; prospective parents may cover only ‘reasonable expenses’.) But many of these surrogates were then refused payment, either for not having obeyed the strict requirements placed upon them—or for having miscarried.
In India, the problems accompanying exploitative surrogacies became so severe that their government banned international surrogacy altogether. Now only those with Indian passports may use surrogates in the country. And even then the societal stigma is far-reaching: many Indian surrogates don’t tell their loved ones what they’re doing, instead saying they’re going to work in another city for a year. Surrogates are often essentially put under house arrest. Lots are so poor they’d rather send their money back home so their kids can eat rather than purchasing food for themselves. Contrast this horrendous exploitation with paid surrogacy in places like California, where surrogates carry on with their lives at home, surrounded by family, friends, home comforts—and oftentimes their own children.
The unprecedented legal dilemmas caused by health tourism
Different countries have wildly different opinions on surrogacy. In France and Germany, for example, surrogacy is widely considered to violate a woman’s dignity, reducing her to a means to someone else’s end. It’s therefore completely forbidden. But other countries broadly consider surrogacy to be one woman’s gift to another, as in the UK, and so permit it on an ‘altruistic’ basis—but with only expenses paid, to limit the risk of exploitation. And then still other places like Ukraine and California allow commercial surrogacy, considering it an expression of a woman’s autonomy and agency to use her body as she sees fit, in accordance with her own free will.
These inconsistent cultural attitudes toward surrogacy have led to a rise in ‘health tourism’, whereby prospective parents from countries with less favourable attitudes toward surrogacy simply travel somewhere with more relaxed laws—or, more worryingly, somewhere with a lack of regulation: not only India and Thailand, as we’ve already seen, but also Nepal and Cambodia. Even when these countries close their illegal clinics which were serving foreigners in an effort to prevent exploitation, another one just pops up in its place.
Surrogacy tourism leads to serious legal and ethical dilemmas, because not all countries recognise the surrogate as the legal parent. Some instead allocate parenthood to the commissioning parents from the moment of birth. If these parents then attempt to return home with their baby, a clash of laws may leave their child stateless, with neither country actually recognising their citizenship. Take the landmark case of Baby Manji in 2008, born to an Indian surrogate and left in legal limbo after her Japanese commissioning parents divorced before her birth. Neither the surrogate nor the biological mother wanted custody of Manji—and even more incredibly, the biological father, who did want custody, was prohibited from adopting Manji as an unmarried individual, in accordance with Indian law. Baby Manji had no legal parents—and no legal nationality, either. In 2008 she was in the care of her grandmother (the mother of Baby Manji’s father). That’s the last we know of the story to date—but I hope and pray that father and daughter were reunited.
If the baby does return home with the commissioning parents, the authorities in their home country have to decide to give effect to the agreement that occurred overseas, permitting them to become the legal parents in their home jurisdiction. Thankfully, most countries sensibly prioritise the wellbeing of the child. That means authorities are often simply forced to accept the results of the surrogacy arrangement—but that can in turn lead to them also turning a blind eye to obvious exploitation having taken place abroad.
Could countries ever reach an international surrogacy agreement?
International surrogacy is so fraught with difficulties because attitudes toward the procedure vary dramatically across countries. Intergovernmental body the Hague Conference on Private International Law is presently exploring the possibility of forming internationally agreed rules which would enable authorities to recognise parenthood in instances of children born abroad through surrogacy. However, countries that ban or restrict the practice will naturally be unlikely to sign up to such an agreement. This would leave authorities facing the same fundamental problem as before they set out on this noble endeavour: a burgeoning global surrogacy market whose very existence is founded on the inconsistencies of these international laws.
Surrogacy can give prospective parents the greatest joy in life: the child they’ve always wanted but could never have without the aid of modern technology. But as with all the best things in life, bad actors are circling not so far away on the periphery, seeking vulnerable individuals to target, exploit, then leave in an even worse state, not only emotionally but also financially and healthwise. And as surrogacy grows in popularity, these ethical dilemmas will only increase in number and profundity. So before you enter into a surrogacy agreement with someone—no matter where they are in the world—take a step back, and consider whether anyone is being exploited in this situation. What you want is a happy, healthy baby—but not at someone else’s expense. You definitely don’t want that on your conscience.