Surrogacy and the Politics of Commodification

WHAT'S OUT THERE: SURROGACY FORUM BOOK REVIEW

Truth is often stranger than fiction, and nowhere is this more evident than when examining the real stories related to international commercial surrogacy that have occurred in the last few years. This Article utilizes these recent cases to analyze this industry using a bioethical lens. Bioethicists use stories effectively to demonstrate how theory and normative ideals apply to real world situations. By detailing examples of some of the unique scenarios that have arisen in far-flung cities of India, the United States, and the Ukraine, this Article highlights some of the bioethical dilemmas such stories raise. This Article examines these stories using the classic theoretical bioethics framework to demonstrate the need for clarification of state or national regulation and international guidelines related to international surrogacy. Global surrogacy is more popular than ever due to advances in technology allowing for gestational surrogacy, rather than traditional surrogacy. In a traditional surrogacy arrangement, a surrogate becomes pregnant via artificial insemination by sperm from the intended father or donor sperm. Because her own egg contributes to the embryo, a traditional surrogate carries her own genetically related child and agrees to give it up upon the baby’s birth. Due to well publicized cases where traditional surrogates decide they wish to raise the infant that they have carried, and due to public sympathy of these surrogates due to their genetic tie to the infant, gestational surrogacy, where there is no such genetic tie, has become vastly more popular than traditional surrogacy. Gestational surrogacy refers to the process whereby an embryo is created with an egg and sperm from the intended parents (or from donor eggs and sperm) through an in vitro fertilization procedure and is then transferred into the uterus of a genetically unrelated surrogate. Gestational surrogacy has largely replaced traditional surrogacy in the world of international surrogacy - and it is indeed a “world” of international surrogacy. The popularity of medical tourism, whereby consumers of health care travel around the world to receive cheaper medical care, has spread to reproductive tourism. International or global surrogacy is a booming business. Although some have written with concern about the potential exploitative nature of international surrogacy, the Western press has mostly positive press reports about success stories in international surrogacy. Although many countries still prohibit or restrict surrogacy arrangements, the market for international surrogacy is estimated to be six billion dollars annually worldwide. Some countries, such as India and Ukraine, wish to be seen as international surrogacy meccas by providing quality medical care for a low cost and attempting to provide the most legal protections for intended parents. In the United States and some European countries, the initial stigma associated with using a surrogate to build one’s family than existed a few decades ago seems to have dissipated as these arrangements become more commonplace. Additionally, with the ability of intended parents to research distant parts of the world as potential surrogacy destinations and with lower costs associated with a competitive global marketplace, intended parents who were previously unable to consider a surrogacy arrangement due to financial constraints, are viable fertility tourists. This Article uses cases of surrogacy in Ukraine, India, and the United States as examples. These countries have been at the forefront of the booming international surrogacy industry. The field of international surrogacy is relatively new, with participant countries competing to become known as leaders in this field. California has a long history with surrogacy. Due to its developed system of surrogacy, it is perceived as an attractive international surrogacy option for those who can afford the high cost of surrogacy in the United States. India has also emerged as a global leader in surrogacy in the developing world. Ukraine is quickly gaining traction as a destination of choice. This Article using these stories involving surrogacy in the United States, India, and Ukraine to highlight similarities and differences in the surrogacy experience in countries active in the international surrogacy market. This Article first tells the story of a recently uncovered baby-selling ring that exploited aspects of both surrogacy and adoption law and involved two countries active in international surrogacy: the United States (California specifically) and Ukraine. Then, this Article explores stories in India and Ukraine involving babies lost in legal limbo due to the inconsistencies of surrogacy law in different countries. Next, this article discusses the gestational surrogacy landscape in the United States, India, and Ukraine and examines the laws and regulations related to surrogacy that exist in each country. Finally, this Article discusses bioethical concerns raised by the stories as they relate to each of the parties involved in commercial surrogacy-the intended parents, the surrogates, and the infants. I use this bioethical framework to deconstruct the stories of commercial surrogacy to identify areas where the current global surrogacy market could stand to change.

Advancement in science and technology never fails to create milestones. In the current era of advanced science and technology, the impossible, unimaginable or unthinkable is achievable. It hasbeen made possible for a woman not only to have sexual intercourse without getting pregnant but also to get impregnated without sexual intercourse. One such development is the utilization of in vitro fertilization (IVF) evolution in gestational surrogacy. In a surrogacy arrangement, a woman known as the ‘surrogate mother’ consents to bear a child for a childless couple. The surrogate mother is impregnated either by artificial insemination or IVF. After carrying the child for 40 weeks and delivering the child thereafter, the child is handed into the custody of the childless couple. The surrogate’s ties or bonds with the child end upon the delivery of the child. However, as simple as it sounds, surrogacy arrangements kindle the interference of the law, especially when disorder disrupts the social norms of the public sphere. Women are offering to be surrogate mothers for money through agencies and medical centres. Hence, agencies are flourishing to offer surrogacy services as it seems to be a money-spinning business. As a result, surrogacy arrangements have reached a disturbing state of commodification warranting legislative interference. Countries around the world should not be procrastinating on legislative measures to regulate surrogacy arrangements on the basis that it is against one’s moral, cultural or religious values. Instead, countries all over the world should take proactive measures to come to a united stand such as a global treaty to regulate surrogacy arrangements.

A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.

At present, onshore commercial surrogacy is illegal in all Australian states and territories. By contrast, offshore commercial surrogacy is legal in all bar one territory and two states. As a result, significant numbers of Australian citizens undertake travel each year to enter into commercial surrogacy arrangements. The present paper reports on findings derived from interview data collected with 21 Australian citizens who had children through an offshore commercial surrogacy arrangement, either in India or the United States. Framed by an understanding of the vulnerability that arises from the demand of reproductive citizenship, the analysis focuses specifically on whether or not the participants would have entered into an onshore commercial surrogacy arrangement had this been legal at the time. The findings suggest that for some participants, undertaking surrogacy ‘at a distance’ was perceived to be safer and provided a degree of privacy, whilst for other participants surrogacy closer to home would have removed some of the more challenging aspects of offshore arrangements. With these findings in mind, the paper concludes by considering Jenni Millbank's (2014) suggestion that Australian states and territories should legalise onshore commercial surrogacy, and the barriers that may exist to the uptake of such potential legal change.

The commercial surrogacy arrangement in India brings together diverse sets of people in the process of making a child. The Indian surrogate mother incubates an artificially fertilized pregnancy for an Indian or overseas couple in an Indian IVF (in vitro fertilization) clinic and then relinquishes the child as per the contract. But the process of commercial gestational surrogacy involves many forms of negotiations over relationships and identity that complicate its actual execution. This paper explores the Indian surrogate and the foreign gay couple in their navigation of the surrogacy arrangement in India. In popular representations in the media and policy discussions, they are both caught between questions of reproductive choice and agency, but in reality arrangement is complicated and complicates their role within the arrangement.

SophieLewisFull Surrogacy Now: Feminism Against FamilyVerso Books, 2019. 224 p. £14.99

Chapter 9 - Baby desired, travel required: negotiating international commercial surrogacy arrangements

This paper explores the absence of the ‘surrogacy contract’ from recent judicial decisions on surrogacy. In The Sexual Contract Pateman argued that, ‘[o]nly masculine beings are endowed with the attributes and capacities necessary to enter into contracts’ and therefore that the sexual contract was ignored in the establishment of patriarchal norms. The central principles of the regulation of surrogacy in the UK are set out in the Surrogacy Arrangements Act 1985; s.1A states that surrogacy arrangements are unenforceable and s.2 prohibits commercial surrogacy. This paper argues that one of the consequences of these principles has been an absence of consideration of the underlying ‘surrogacy contract’ in judicial decisions concerning ‘parental orders’: the post birth order that transfers legal parenthood from the surrogate to the intended parent, set out in s.54 of the Human Fertilisation and Embryology Act 2008. Instead, other interests have been focused upon within judicial language, particularly the ‘best interests of the child’ and a related emphasis on reflecting the ‘status’ and ‘identity’ of the child(ren).Moreover, this language is reflected within the wider ‘reform’ agenda regarding the regulation of surrogacy. This conceptual approach obscures the contract between the parties which is at the heart of any surrogacy arrangement. Thus, this paper argues that this absence of contemporary consideration of the contractual nature of surrogacy arrangements reflects the disregarding of the sexual contract that Pateman identified 30 years ago.

Reproductive Ethics and Family

Commercial surrogacy arrangements now cross borders; this paper aims to reevaluate the traditional moral concerns regarding the practice against the added ethical dimension of global injustice. I begin by considering the claim that global surrogacy serves to satisfy the positive reproductive rights of infertile first‐world women. I then go on to consider three powerful challenges to this claim. The first holds that commercial surrogacy involves the commodification of a good that should not be valued in market terms, the second that it involves the exploitation of the labor of disadvantaged women, and the third that it depends on the illegitimate privileging of positive rights over negative rights. I reject the first of these challenges and argue that global surrogacy arrangements are indeed exploitative on the dual basis of what I call intracontractual injustice and intercontractual coercion. The latter, I contend, depends on a preexisting negative rights violation, which cannot be permitted for the sake of satisfying another's positive reproductive entitlement. I conclude not in favor of a global ban but with suggestions on how developing nations that permit commercial surrogacy might better protect the negative reproductive rights of their female citizens, thereby making them less vulnerable to exploitation.

Commentary: Ethical issues in surrogate motherhood

In January 2016, Melissa Cook, a California gestational surrogate experiencing a multiple-birth pregnancy following the in vitro fertilization (IVF) transfer of three embryos comprised of donor eggs and sperm provided by the intended father, went to the media when the intended father requested that she undergo a fetal reduction because twins were less expensive to raise than triplets. Much of the legal interest in this case to date has centered on the enforceability of surrogacy contracts. However, the Cook case also raises troubling issues about fertility treatment practices involving gestational surrogates, twin preference, and third-party reproduction medical decision-making. This paper focuses on multiple-embryo transfers in the context of US surrogacy arrangements. Offering an original analysis of data obtained from the US national-assisted reproduction registry, it examines single- and multiple-embryo transfer trends over a 12-year period (2003 to 2014). Findings reveal that recommended guidelines were followed in fewer than 42% of the cases in 2014. The paper argues that ensuring equitable medical treatment for all recipients of IVF requires the adoption of treatment guidelines tailored to, and offering protections for, specific patient groups, and that, once in place, guidelines must be robustly implemented.

Surrogacy is a highly debated method mainly used for treating women with infertility caused by uterine factors. This systematic review summarizes current levels of knowledge of the obstetric, medical and psychological outcomes for the surrogate mothers, the intended parents and children born as a result of surrogacy. PubMed, Cochrane and Embase databases up to February 2015 were searched. Cohort studies and case series were included. Original studies published in English and the Scandinavian languages were included. In case of double publications, the latest study was included. Abstracts only and case reports were excluded. Studies with a control group and case series (more than three cases) were included. Cohort studies, but not case series, were assessed for methodological quality, in terms of risk of bias. We examined a variety of main outcomes for the surrogate mothers, children and intended mothers, including obstetric outcome, relationship between surrogate mother and intended couple, surrogate's experiences after relinquishing the child, preterm birth, low birthweight, birth defects, perinatal mortality, child psychological development, parent-child relationship, and disclosure to the child. The search returned 1795 articles of which 55 met the inclusion criteria. The medical outcome for the children was satisfactory and comparable to previous results for children conceived after fresh IVF and oocyte donation. The rate of multiple pregnancies was 2.6-75.0%. Preterm birth rate in singletons varied between 0 and 11.5% and low birthweight occurred in between 0 and 11.1% of cases. At the age of 10 years there were no major psychological differences between children born after surrogacy and children born after other types of assisted reproductive technology (ART) or after natural conception. The obstetric outcomes for the surrogate mothers were mainly reported from case series. Hypertensive disorders in pregnancy were reported in between 3.2 and 10% of cases and placenta praevia/placental abruption in 4.9%. Cases with hysterectomies have also been reported. Most surrogate mothers scored within the normal range on personality tests. Most psychosocial variables were satisfactory, although difficulties related to handing over the child did occur. The psychological well-being of children whose mother had been a surrogate mother between 5 and 15 years earlier was found to be good. No major differences in psychological state were found between intended mothers, mothers who conceived after other types of ART and mothers whose pregnancies were the result of natural conception. Most studies reporting on surrogacy have serious methodological limitations. According to these studies, most surrogacy arrangements are successfully implemented and most surrogate mothers are well-motivated and have little difficulty separating from the children born as a result of the arrangement. The perinatal outcome of the children is comparable to standard IVF and oocyte donation and there is no evidence of harm to the children born as a result of surrogacy. However, these conclusions should be interpreted with caution. To date, there are no studies on children born after cross-border surrogacy or growing up with gay fathers.

A survey of UK fertility clinics' approach to surrogacy arrangements