Should surrogacy be banned?

A short review of the ethical and human rights issues related to surrogacy

Introduction 

On the 2^nd and the 3^rd of May the organization ‘Men having Babies’ (MHB) organized a controversial meeting in Brussels. MHB is an LGBTI (Lesbian Gay Bisexual Transsexual and Intersex) friendly organization that wants to enable gay couples to have children. Of course this is naturally impossible, so they use the services of surrogate mothers who carry the child of one of the men. Simply by browsing on their website you can see that for a bit more than 100000 US dollars you can proceed with 'obtaining' your own child. Usually these processes take place in developing countries like India.

Lately, many groups and movements (especially those that are LGBTI related) are pushing for a legal framework that allows and facilitates surrogacy. For example, the rapporteur on a report on surrogacy by the Parliamentary Assembly of the Council of Europe (PACE); someone who supposedly has to investigate the ethical and human rights issues related to surrogacy, is a transgender person who is involved in cross-border surrogacy in Belgium and is currently involved in commercial surrogacy in India.[1]

In the meantime, the majority of the European Parliament condemns all forms of surrogacy in two reports on human rights. Christian politicians do agree to ban commercial surrogacy, but are divided on the issue of 'altruistic' surrogacy (where the mother agrees to gestate a child for intended parents without being compensated monetarily in any way).


 Read here the article

This article I wrote together with my colleague Lefteris Kaloterakis, and is based on the research of Teuta Vodo (the European Policy Researcher for ECPM), investigates all different aspects of surrogacy as well as its consequences on the rights of the mother and the child. We will also outline the medical dangers that are involved for the mother and the child. Finally, special reference will be made to the ethical and moral issues related to this practice as well as its connection with a relative new form of human trafficking: maternity trafficking. 

Definition of surrogacy

Surrogacy is "a practice whereby a woman becomes pregnant with the intention of giving the child to someone else upon birth.”[2 ]Some divide surrogacy into commercial and ‘altruistic’, depending upon whether the surrogate receives financial reward for her pregnancy. However, this approach does not take into account the rights and the dignity of children. Whereas in commercial surrogacy the intending parents offer a financial incentive to secure a willing surrogate, in 'altruistic' the surrogate mother agrees to gestate a child for intended parents without being compensated monetarily in any way. In other words, this is in effect a free surrogacy.[3] 

Commercial surrogacy is an international, cross-border capitalistic and fast-growing trade valued at a minimum of €4 billion a year. ‘Commissioning’ parents are middle to upper-class citizens while surrogate mothers and egg donors are usually in a much less comfortable financial position. The surrogacy market involves many intermediaries worldwide, financially rewarded to organize the process, find surrogate mothers and egg donors. One the other hand, the surrogate mother receives only 15- 30% of the total surrogacy price. 

For over a decade, the issue of surrogate motherhood and its consequences has expanded with the convergence of the development of the artificial procreation techniques and the establishment of a significant business in certain countries such as the United States, India, Ukraine or Thailand. Currently, even though the vast majority of countries in the world do not practice surrogate motherhood, very few national laws explicitly prohibit it. Laws on surrogacy differ widely from one country to another.

 ‘Altruistic’ surrogacy, where the surrogate mother is not paid, or only paid for reasonable expenses, is allowed in countries such as Belgium, United Kingdom,[4] Denmark, Greece,[5] Netherlands, Israel, U.S. states (Kentucky, Nebraska, Maryland, Washington, Michigan), Florida (couple must be married to use a surrogate), Utah, Virginia, Canada,[6] and Australia.[7] In South Africa, the Children's Act of 2005 enabled the ‘commissioning parents’ and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty.[8]

Despite efforts to describe this method as a valorous act of kindness that has no other implications on the physical and psychological state of those that participate in it, information stemming of various research efforts suggests otherwise. This article will try to show that surrogacy as a practice cannot be seen as an act of altruism despite the intentions of those who participate in it and regardless of whether women who participate are paid or not. Additionally, there are serious ethical, medical and social implications of this practice that need to be taken into account. 

How altruistic is "altruistic surrogacy"?

The idea that ‘altruistic’ gestational surrogacy is an acceptable process is gaining ground. This happens because it is widely perceived as an act of kindness where the surrogate is empathetically driven to share what they have and to utilize the reproductive capacities for altruistic reasons. But is this true? Should ‘altruistic’ surrogacy be tolerated? There is a number of psychological, ethical, social issues which are ignored by ‘altruistic’ surrogacy. 

While surrogacy can be seen as enhancing reproductive freedom for the commissioning mother to have a genetic child, and for a surrogate mother to utilize her reproductive capacities for altruistic or financial reasons, surrogacy arrangements are ripe with possibilities for women‘s reproductive freedom to be severely violated. As Raymond states, any valorizing of ‘altruistic’ surrogacy and reproductive gift-giving must be assessed within the wider context of women’s political inequality.[9] It has been repeatedly shown that unacceptable practices arise from this phenomenon, especially the exploitation of women used to satisfy the desire of wealthy western citizens, for the greater benefit of various intermediaries, agencies, lawyers or clinics.

Ethical, Medical and Social Implications of surrogacy

The real suffering of infertile couples should not conceal the fact that surrogate motherhood raises crucial issues regarding ethical aspects, but also medical, legal and social. First of all, surrogacy arrangements pose many problems and contradictions with established human rights framework due to the fundamental incompatibilities of surrogacy with human dignity. These incompatibilities exist for both commercial and non-commercial (‘altruistic’) surrogacy. At the initiative of the Council of Europe, the 1997 International Convention for the Protection of Human Rights and Dignity of Human Beings (OviedoConvention) prohibits the use of human body for financial gain. The surrogacy practice does not comply with this convention. Additionally, surrogacy violates the Article 7 of the Convention on the Rights of the Child to know his or her origin and identity. The main difference between ‘altruistic’ and commercial surrogacy is that the most vulnerable part of the surrogacy contract, the surrogate mother, is paid less or not at all. Surrogacy is therefore not an employment or work and should only be considered as alienation, a modern type of slavery and an illegal trade.

Even supporters of surrogacy believe that surrogacy should be regulated. Some draw a parallel with the 1993 Convention on Intercountry Adoption, which does not require States to authorize international adoption but frames it for those who admit it, so that it does not turn into child trafficking. However, the situations of adoption and surrogacy are not comparable. Adoption aims at giving a family to a child who no longer has one. The fact that it can be misused does not change its primary purpose, which is the protection of orphaned or abandoned children. Contrarily, surrogacy is intended to give a child to one or more adults. It consists in ‘fabricating’ a child, thus deliberately depriving him/her of his family of origin, in manipulating its conception and legal parentage to satisfy the desire of adults.

Therefore, the foundations of surrogacy are questionable from an ethical standpoint. The adoption procedure is reused on surrogacy in an unplanned way and does not meet the objectives of adoption neither the conditions for its application. Finally, many proponents of surrogacy claim to be supporting the so called ‘reproductive rights’ and the ‘right to a child’. However, there is no international consensus on these alleged ‘reproductive rights’ and a ‘right to have a child’. They simply don’t exist as rights. There is however, a natural born right of a child for a father and a mother as well as their inherent right to human dignity. Children should never be treated as a commodity. 

Surrogacy has also been linked to maternity trafficking. For example, many organizations based in the US (a country where surrogacy is legal) cooperate with UK organizations helping British couples gain access to surrogacy. The acceptance of ‘altruistic’ surrogacy easily opens the door for commercial surrogacy and maternity trafficking. Moreover, vulnerable women are recruited and ‘shopped’ for, based on their appearance, through coercion or not. The fact that their bodies and their babies are being bought for individuals who are in a more powerful socio-economic status than themselves brings about a trade comparable with human trafficking as defined by the United Nations. In a nutshell, these points highlight the fundamental incompatibilities of surrogacy with the principle of human dignity, and the serious problems it poses with regard to existing international human rights law norms. 

There are also important medical implications stemming from surrogacy concerning especially the women who become gestational mothers but also children and the egg donor. Surrogacy procedures induce a high risk of multiple pregnancies (25-50% of twins vs. 1.2% normally), which are problematic for both the surrogate mother and the fetuses. Pregnancy, birth and the post-partum period includes complications such as pre-eclampsia and eclampsia, urinary tract infections, stress incontinence, hemorrhoids, gestational diabetes, life-threatening hemorrhage and pulmonary embolism.[10] About the child, the vulnerable new-born child cannot express his suffering. However, issues such as premature delivery, genetic malformation and infections which lead to increased hospitalization of newborn are important issues to be considered in surrogacy contract.[11] A major study in the Journal of Child Psychology and Psychiatry looked at 30 surrogacy families and found that surrogate children, while not suffering from psychological disorders, had elevated levels of adjustment difficulties.[12] 

Finally, surrogacy has also social implications. According to most studies, surrogates come to depend emotionally on a continued relationship with the intended mother. The majority of the surrogates expressed that a good relationship with the commissioning couple is necessary to ease the burden of relinquishment. In fact, after delivery the intended mothers did not want any further relationship with the surrogate mother and this latter was not allowed to see the baby. In the early 2000s, surrogates were sorely disappointed when contact waned or couples cut ties. Over time, expectations have been adjusted in light of the many stories of disappointment.[13] Moreover, studies have shown that there is a risk that surrogate mothers might be humiliated by their families or friends that affect their psychological health.[14]

A study on the experience of surrogate mothers showed that in 7% of the cases, the family reaction was negative and in 46% was neutral or mixed of negative and positive.[15] A study in Greece showed negative attitude of most people towards this method.[16] In countries such as India, the surrogates are shifted into hostels for the whole duration of pregnancy. Even though the pretext is to take antenatal care, the real motive is to guard them and to avoid any social stigma of being outcast by their community.[17]

Conclusion

The global dimension of surrogacy raises the need for regional and international collaboration following principles enshrined in national and international human rights instruments, stemming from the centrality of human dignity. In consequence, the only appropriate response that can be brought on the international level is banning surrogate motherhood, in the same way as the sale of children, and requiring the adoption of criminal sanctions for offenders, especially the intermediaries.  Surrogacy, even the so called ‘altruistic’ surrogacy, should not be permitted. As the "Annual Report on Human Rights and democracy in the world 2014 and the EU policy on the matter" which was tabled in the European Parliament by MEP Cristian Dan Preda (EPP, Romania) states in paragraph 115: “[the practice of surrogacy] undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity”. The European Parliament also “considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments”. Therefore, banning surrogacy is a matter of urgency. The human dignity of thousands of mothers and children around the world is violated and we have to act.

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[1] Rapporteur de Sutter is also involved in commercial surrogacy. Since August 2015, she has been working with the Indian clinic, "Seeds of Innocence" (SOI) which practices commercial surrogacy.  The following link  names Petra de Sutter as the person in charge of the collaboration with the SOI clinic: http://www.seedsofinnocence.com/international-patients . In the same link, the process of surrogacy is clearly described and speaks about surrogates, which "are generally provided by the surrogacy agency and ART banks registered under CMR". And the SOI clinic declares: "Indian clinics are becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates under legal arrangements (...) All surrogates at the clinic sign a contract agreeing to hand over the baby (...)  The surrogates are well taken care of and well compensated (...). If the surrogate receives compensation other than the medical expenses, then the arrangement is referred as commercial surrogacy. otherwise it is considered as altruistic. 

[2] European Parliament 2013, ‘A comparative study on the regime of surrogacy in EU Member States’, p. 12. [8 May 2015].
[3] Idem
[4]The surrogate is legally recognized as the mother, regardless if she is biologically related to the child or not. Surrogacy contracts are not enforced in the U.K.
[5]Greece does not allow for gay couples to use a surrogate.
[6]In Canada, the Assisted Human Reproduction Act permits only altruistic surrogacy.
[7]In Australia, in all states (except Tasmania, which bans all surrogacy under the surrogacy Contracts Act 1993) ‘altruistic’ surrogacy has been recognized as legal. New South Wales, Tasmania, Queensland and Victoria allow for gay couples to create a family via surrogates. The other Australian states do not. Some Australian states require that you be married or a single woman, or need a surrogate based on health reasons.
[8]I. Kriari-Catranis (2003), ‘Human assisted procreation and human rights - The Greek response to the felt necessities of the time’, Eur J Health Law 10(3), 271-80.
[9]J.G. Raymond (1990), ‘Reproductive gifts and gift giving: the altruistic woman’, Hastings Cent Rep 20(6), 7-11, p. 1.
[10]P. Pawan Kumar, D. Inder, N. Sharma (2013), op.cit., p. 3.
[11]Commercial surrogacy and fertility tourism in India, The Case of Baby Manji. The Kenan Institute for Ethics at Duke University. The case studies in ethics. Available at: ; B. Jacobsson, L. Ladfors, I. Milsom (2004),  ‘Advanced maternal age and adverse perinatal outcome’, Obstet Gynecol 104(4), 727-33.    
[12]J. Lahl, W. Christopher (2014), ‘Why Gestational Surrogacy Is Wrong.
[13]Z. Berend (2014), ‘The social context for surrogates’ motivations and satisfaction’, Reproductive BioMedicine 29(4), 399-401, p. 399.
[14]V. Jadva, C. Murray, E. Lycett, F. MacCallum, S. Golombok (2003), ‘Surrogacy: the experiences of surrogate mother’, Hum Reprod. 18(10), 2196-204.
[15]F. Shenfield, G. Pennings, J. Cohen, P. Devroey, G. de Wert, B. Tarlatzis, ESHRE (2005), ‘Task force on ethics and law 10: surrogacy’, Hum Reprod. 20(10), 2705–2707; O.B.A. van den Akker (2007) op.cit.; J. Kennell, S. McGrath  (2002), op.cit.; M. Akhoundi, Z. Behjati Ardakani (2008), ‘Surrogacy and the necessity for its application in infertility treatment’, J Reprod Infertil. 9(1), 7–13.
[16]J. Kennell, S. McGrath (2002), ‘Starting the process of mother-infant bonding’, Acta Paediatrica 94, 775–777.
[17]P. Saxena, A. Mishra, S. Malik (2012), ‘Surrogacy: Ethical and Legal Issues’, Indian J Community Med 37(4), 211–213, p. 213.