By Sarah DeLoach

Artificial reproductive technologies (“ART”) have brought millions of families together and provided opportunities for parentage which were once considered impossible.[1] Since its inception in 1976, the ART of surrogacy, though, has caused increasing concern.[2] The legal implications of international commercial surrogacy and the exploitation of women in third-world countries are particularly troubling.

Commercial surrogacy has boomed in the United States within the past several decades, with around 4,000 cases annually in the United States alone.[3] Globally, the commercial surrogacy industry is projected to grow to over $20 billion within the next few years.[4]

Altruistic surrogacy involves an arrangement in which the surrogate carries a child but does not receive compensation for her services. Commercial surrogacy typically involves high-income, foreign intended parents offering monetary incentives to women in need willing to carry their biological child.[5] International commercial surrogacy involves all aspects of commercial surrogacy plus a transnational element. Because it can be difficult to find surrogate women, and because there are high costs and strict regulatory restrictions in western countries, many have turned to outsourcing surrogacy to low-income countries.[6] Thus, the practice largely occurs in poor countries with large populations of poor women.[7]

International commercial surrogacy in India serves as an important case study, where the practice operated unregulated for years before it was banned.[8] India legalized surrogacy in 2002 but failed to properly regulate the industry during its existence.[9] Like other third world countries, India serves as an appealing surrogacy destination because of its low cost.[10] Whereas the cost of one surrogacy in Western countries can be up to $90,000, the process can be conducted in India for a third of that price.[11] In 2012, The fertility industry brought in revenue between $1-2 billion to India.[12] Despite its legality, the lack of regulation makes commercial surrogacy exploitative and dangerous for the women and children involved.[13]

Dr. Sheela Saravanan reported on two in-vitro fertilization clinics in Western India shortly before the country banned commercial surrogacy.[14] Through interviews with surrogates, surrogate spouses, intended parents, and doctors, Dr. Saravanan came to liken surrogacy to “a bazaar where everything about women’s reproductive capacity and the children born was priced, including the number, weight, and gender/(dis)abilities of the child(ren) born.”[15]

Additionally, Dr. Saravanan noted a myriad of unethical medical practices throughout her study. When a woman carries a child conceived from an egg that is not her own, she already faces a three-fold risk of developing hypertension and pre-eclampsia.[16] In her study, Dr. Saravanan additionally found that the surrogate mothers were overfed so that their babies would be larger and more desirable.[17] She observed that the surrogate mothers were unable to exercise and kept on bed rest during their first trimester.[18] Finally, Dr. Saravanan noted how an unsafe number of embryos were implanted into the surrogate mothers’ womb resulting in selective abortions and compulsory cesarean sections.[19] The children involved in these transactions often did not fare much better, with disabled children or children of an undesired sex sold or left in orphanages.[20]

While the trends and figures are astonishing, the most compelling stories about commercial surrogacy are the personal tragedies women face. For example, Ranju Rajubhai an Indian woman turned to surrogacy during a time of desperation to pay for her husband’s surgery after a burn injury left him unemployed.[21] Even after carrying a western couple’s child to term, Rajubhai still could not cover her husband’s medical expenses and opted for a second surrogacy pregnancy to do so.[22] Rajubhai represents one of many women in dire circumstances—without alternative employment options—who are exploited by commercial surrogacy clinics.[23]

In 2015, India banned commercial and transnational surrogacy.[24] However, the practice has moved to other countries, where the aforementioned cruel practices remain legal.[25] Even in countries where commercial surrogacy is illegal, strategic workarounds enable exploitative practices to continue.[26] In China, for instance, couples and surrogates can travel to Thailand to implant the couple’s embryo legally, and subsequently place the surrogate in China where she is cut off from her family.[27]

As ART improves, surrogacy law must evolve and adapt. Rather than banning surrogacy across countries altogether, some including Dr. P Namrata has proposed an integrative justice model that could make the commercial surrogacy market fair and equitable and balance power in favor of surrogates.[28] The proposal includes establishing a “pricing ombudsman” who would guarantee that surrogates – rather than the middlemen and clinics – receive fair compensation.[29] Dr. Namrata also proposed that anticipated health risks surrogates face should be considered as part of their contract alongside financial safeguards such as health insurance to minimize health risks to socioeconomically vulnerable surrogates.[30] Finally, Dr. Namrata emphasized that arrangements should be made to ensure the informed consent of the surrogate, counseling services, and legal assistance to represent the surrogate’s interests throughout the pregnancy and birth.[31]

 

[1] Anne-Kristin Kuhnt & Jasmin Passet-Wittig, Families Formed Through Assisted Reproductive Technology: Causes, Experiences, and Consequences in an International Context, 14 Reproductive BioMedicine and Society Online 289, 290 (2022), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8907601/pdf/main.pdf.

[2] History of Surrogacy, Creative Family Connections (Apr. 28, 2022), https://www.creativefamilyconnections.com/history-of-surrogacy/#:~:text=Surrogacy%20history%20timeline&text=1976%3A%20Lawyer%20Noel%20Keane%20creates,successful%20gestational%20surrogacy%20takes%20place.

[3] Surrogacy: Where in the World?, ORM Fertility (June 1, 2017) https://ormfertility.com/surrogacy-where-in-the-world/.

[4] Grace Melton & Melanie Israel, How Surrogacy Harms Women and Children, The Heritage Foundation (May 5, 2021), https://www.heritage.org/marriage-and-family/commentary/how-surrogacy-harms-women-and-children.

[5] Women in Poverty Turning to Surrogacy, Borgen Magazine (Aug. 17, 2014), https://www.borgenmagazine.com/women-poverty-turning-surrogacy/; Elo Luik, Cross-border Surrogacy: Exploiting Low Income Women as Biological Resources?, The Guardian (Mar. 28. 2017), https://www.theguardian.com/science/blog/2017/mar/28/cross-border-surrogacy-exploiting-low-income-women-as-biological-resources.

[6] Elo Luik, Cross-border Surrogacy: Exploiting Low Income Women as Biological Resources?, The Guardian (Mar. 28. 2017), https://www.theguardian.com/science/blog/2017/mar/28/cross-border-surrogacy-exploiting-low-income-women-as-biological-resources.

[7] Nayna Patel & Mohan Rao, Is Surrogacy a Legitimate Way Out of Poverty?, New Internationalist (Nov. 2014), https://newint.org/sections/argument/2014/11/01/argument-surrogacy-poverty.

[8] K. Blaine, The Dangerous Effects of Surrogacy: How Big Fertility Exploits Poor Women, Mercatornet (Nov. 16, 2018), https://mercatornet.com/the-dangerous-effects-of-surrogacy-how-big-fertility-exploits-poor-women/23805/.

[9] Women in Poverty Turning to Surrogacy, Borgen Magazine (Aug. 17, 2014), https://www.borgenmagazine.com/women-poverty-turning-surrogacy.

[10] Id.

[11] Id.

[12] Nayna Patel & Mohan Rao, supra note 7.

[13] Id.

[14] K. Blaine, The Dangerous Effects of Surrogacy: How Big Fertility Exploits Poor Women, Mercatornet (Nov. 16, 2018), https://mercatornet.com/the-dangerous-effects-of-surrogacy-how-big-fertility-exploits-poor-women/23805/.

[15] Id.

[16] Grace Melton & Melanie Israel, How Surrogacy Harms Women and Children, The Heritage Foundation (May 5, 2021), https://www.heritage.org/marriage-and-family/commentary/how-surrogacy-harms-women-and-children.

[17] Blaine, supra note 14.

[18] Id.

[19] Id.

[20] Id.

[21] Women in Poverty Turning to Surrogacy, Borgen Magazine (Aug. 17, 2014), https://www.borgenmagazine.com/women-poverty-turning-surrogacy/.

[22] Id.

[23] Id.

[24] K. Blaine, The Dangerous Effects of Surrogacy: How Big Fertility Exploits Poor Women, Mercatornet (Nov. 16, 2018), https://mercatornet.com/the-dangerous-effects-of-surrogacy-how-big-fertility-exploits-poor-women/23805/..

[25] Surrogacy: Where in the World?, ORM Fertility (June 1, 2017) https://ormfertility.com/surrogacy-where-in-the-world/.

[26] Women in Poverty Turning to Surrogacy, supra note 5.

[27] Id.

[28] Sujit Raghunathrao Jagadale, Dilemmas with Hiring an Impoverished Exchange Partner for Commercial Surrogacy, Sage Business Cases (Jan. 2, 2018).

[29] Id.

[30] Id.

[31] Id.